EXHIBIT 4.18
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FORM OF
AMENDED AND RESTATED
TRUST AGREEMENT
among
SNH CAPITAL TRUST HOLDINGS
as Sponsor,
[................................................]
as Property Trustee,
and
THE REGULAR TRUSTEES NAMED HEREIN
Relating to
SNH CAPITAL TRUST [...]
Dated as of [................., ....]
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Certain Sections of this Trust Agreement relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939:
Trust Indenture Trust
Act Section Agreement Section
ss.310(a)(1).............................................................8.7
(a)(2).............................................................8.7
(a)(3)..................................................Not Applicable
(a)(4).............................................................2.7
(a)(5).............................................................8.7
(b)................................................................8.8
(c).....................................................Not Applicable
ss.311(a)...............................................................8.12
(b)...............................................................8.12
(c).....................................................Not Applicable
ss.312...................................................................5.7
ss.313(a)...............................................................8.13
(b).....................................................Not Applicable
(c)...............................................................8.13
(d)...............................................................8.13
ss.314(a)...............................................................8.14
(b).....................................................Not Applicable
(c)...............................................................8.15
(d).....................................................Not Applicable
(e)..........................................................1.1, 8.15
ss.315(a)...........................................................8.1, 8.3
(b)................................................................8.2
(c)................................................................8.1
(d)...........................................................8.1, 8.3
(e).....................................................Not Applicable
ss.316(a)...........................................................6.1, 8.2
(b)................................................................6.8
(c)................................................................6.7
ss.317(a)...........................................................2.7, 8.1
(b)................................................................5.9
ss.318(a)..............................................................10.10
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NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Trust Agreement.
Table of Contents
Page
ARTICLE 1 DEFINED TERMS...........................................................................................1
SECTION 1.1 Definitions.:................................................................................1
ARTICLE 2 ESTABLISHMENT OF THE TRUST.............................................................................10
SECTION 2.1 Name........................................................................................10
SECTION 2.2 Principal Place of Business; Registered Agent...............................................10
SECTION 2.3 Organizational Expenses.....................................................................10
SECTION 2.4 Issuance of the Preferred Securities........................................................10
SECTION 2.5 Subscription and Purchase of Debt Securities; Issuance of the Common Securities.............10
SECTION 2.6 Declaration of Trust........................................................................11
SECTION 2.7 Authorization to Enter into Certain Transactions............................................11
SECTION 2.8 Assets of Trust. ...........................................................................15
SECTION 2.9 Title to Trust Property.....................................................................15
ARTICLE 3 PAYMENT ACCOUNT........................................................................................15
SECTION 3.1 Payment Account.............................................................................15
ARTICLE 4 DISTRIBUTIONS; REDEMPTION; EXCHANGE[; CONVERSION]......................................................15
SECTION 4.1 Distributions...............................................................................15
SECTION 4.2 Redemption..................................................................................16
SECTION 4.3 [Conversion/Reserved].......................................................................19
SECTION 4.4 Special Event Exchange or Redemption........................................................19
SECTION 4.5 Subordination of Common Securities..........................................................21
SECTION 4.6 Payment Procedures..........................................................................21
SECTION 4.7 Tax Returns and Reports.....................................................................22
SECTION 4.8 Payment of Taxes, Duties, Etc., of the Trust................................................22
SECTION 4.9 Payments under Indenture....................................................................22
ARTICLE 5 TRUST SECURITIES CERTIFICATES..........................................................................22
SECTION 5.1 Initial Ownership...........................................................................22
SECTION 5.2 The Trust Securities Certificates...........................................................22
SECTION 5.3 Delivery of Trust Securities Certificates...................................................23
SECTION 5.4 Registration of Transfer and Exchange of Preferred Securities; Restrictions on Transfer.....23
SECTION 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities Certificates..........................24
SECTION 5.6 Persons Deemed Securityholders..............................................................24
SECTION 5.7 Access to List of Securityholders' Names and Addresses......................................24
SECTION 5.8 Maintenance of Office or Agency.............................................................25
SECTION 5.9 Appointment of Paying Agent.................................................................25
SECTION 5.10 Ownership of Common Securities by Sponsor..................................................26
SECTION 5.11 Global Securities; Non-Global Securities; Common Securities Certificate....................26
Table of Contents
(continued)
Page
SECTION 5.12 Notices to Clearing Agency.................................................................27
SECTION 5.13 Definitive Preferred Securities Certificates...............................................27
SECTION 5.14 Rights of Securityholders..................................................................28
ARTICLE 6 ACT OF SECURITYHOLDERS; MEETINGS; VOTING...............................................................28
SECTION 6.1 Limitations on Voting Rights................................................................28
SECTION 6.2 Notice of Meetings..........................................................................30
SECTION 6.3 Meetings of Preferred Securityholders.......................................................30
SECTION 6.4 Voting Rights...............................................................................31
SECTION 6.5 Proxies, Etc................................................................................31
SECTION 6.6 Securityholder Action by Written Consent....................................................31
SECTION 6.7 Record Date for Voting and Other Purposes...................................................31
SECTION 6.8 Acts of Securityholders.....................................................................31
SECTION 6.9 Inspection of Records.......................................................................33
ARTICLE 7 REPRESENTATIONS AND WARRANTIES.........................................................................33
SECTION 7.1 Representations and Warranties of the Property Trustee......................................33
SECTION 7.2 Representations and Warranties of Sponsor...................................................34
ARTICLE 8 THE TRUSTEES...........................................................................................34
SECTION 8.1 Certain Duties and Responsibilities.........................................................34
SECTION 8.2 Notice of Defaults..........................................................................36
SECTION 8.3 Certain Rights of Property Trustee..........................................................38
SECTION 8.4 Not Responsible for Recitals or Issuance of Securities......................................40
SECTION 8.5 May Hold Securities.........................................................................40
SECTION 8.6 Compensation; Indemnity; Fees...............................................................40
SECTION 8.7 Property Trustee Required; Eligibility of Trustees..........................................41
SECTION 8.8 Conflicting Interests.......................................................................41
SECTION 8.9 Resignation and Removal; Appointment of Successor...........................................41
SECTION 8.10 Acceptance of Appointment by Successor.....................................................43
SECTION 8.11 Merger, Conversion, Consolidation or Succession to Business................................43
SECTION 8.12 Preferential Collection of Claims Against Sponsor or Trust.................................44
SECTION 8.13 Reports by Property Trustee................................................................44
SECTION 8.14 Reports to the Property Trustee............................................................44
SECTION 8.15 Evidence of Compliance with Conditions Precedent...........................................44
SECTION 8.16 Number of Trustees.........................................................................44
SECTION 8.17 Delegation of Power........................................................................45
ARTICLE 9 DISSOLUTION, LIQUIDATION AND MERGER....................................................................45
SECTION 9.1 Dissolution upon Expiration Date............................................................45
SECTION 9.2 Early Dissolution...........................................................................45
SECTION 9.3 Dissolution.................................................................................45
SECTION 9.4 Liquidation.................................................................................46
SECTION 9.5 Mergers, Consolidations, Amalgamations or Replacements of the Trust. .......................47
(ii)
Table of Contents
(continued)
Page
ARTICLE 10 MISCELLANEOUS PROVISIONS..............................................................................48
SECTION 10.1 Limitation of Rights of Securityholders....................................................48
SECTION 10.2 Amendment..................................................................................48
SECTION 10.3 Separability...............................................................................50
SECTION 10.4 Governing Law..............................................................................50
SECTION 10.5 Payments Due on Non-Business Day...........................................................50
SECTION 10.6 Successors.................................................................................50
SECTION 10.7 Headings...................................................................................50
SECTION 10.8 Reports, Notices and Demands...............................................................50
SECTION 10.9 Agreement Not to Petition..................................................................51
SECTION 10.10 Trust Indenture Act; Conflict with Trust Indenture Act....................................51
SECTION 10.11 Acceptance of Terms of Trust Agreement, Guarantee and Indenture...........................51
SECTION 10.12 Counterparts..............................................................................52
EXHIBIT A - Certificate of Trust of SNH Capital Trust [...]
EXHIBIT B - Form of Certificate Depositary Agreement
EXHIBIT C - Form of Common Securities of SNH Capital Trust [...]
EXHIBIT D - Form of Preferred Securities of SNH Capital Trust [...]
(iii)
AMENDED AND RESTATED TRUST AGREEMENT, dated as of [.................,
....] among (i) SNH CAPITAL TRUST HOLDINGS, a Maryland business trust (including
any successors or assigns, the "Sponsor"), (ii)
[.......................................], a [....................], as property
trustee (in such capacity, the "Property Trustee" and, in its personal capacity
and not in its capacity as Property Trustee, the "Bank"), (iii)
[[.......................................], an individual, and
[.......................................], an individual], each of whose address
is c/o Senior Housing Properties Trust, 400 Centre Street, Newton, Massachusetts
02458 (each, an "Regular Trustee" and, collectively, the "Regular Trustees" and,
collectively with the Property Trustee, the "Trustees") and (iv) the several
Holders as hereinafter defined.
W I T N E S S E T H:
WHEREAS, the Sponsor and certain of the Trustees have heretofore duly
declared and created a business trust pursuant to the Maryland Business Trust
Act by the entering into of that certain Declaration of Trust, dated as of May
4, 2001 (the "Original Trust Agreement"), and by the execution and filing by
certain of the Trustees with the State Department of Assessments and Taxation of
Maryland of the Certificate of Trust, filed on May 4, 2001, attached as Exhibit
A, for the sole purpose of issuing and selling certain securities representing
undivided beneficial interests in the assets of the Trust (as defined herein)
and investing the proceeds thereof in the Debt Securities (as defined herein);
and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety as set forth herein to provide for, among other
things, (i) the issuance and sale of the Common Securities (as defined herein)
by the Trust to the Sponsor, (ii) the issuance and sale of the Preferred
Securities (as defined herein) by the Trust pursuant to the Underwriting
Agreement (as defined herein) and (iii) the acquisition by the Trust from the
Parent of all of the right, title and interest in the Debt Securities;
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, each party, for the benefit of the other parties
and for the benefit of the Holders of the Preferred Securities, hereby amends
and restates the Original Trust Agreement in its entirety and agrees as follows:
ARTICLE 1
DEFINED TERMS
SECTION 1.1 Definitions. For all purposes of this Trust Agreement,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(b) all other terms used herein that are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(c) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may be,
of this Trust Agreement; and
(d) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Trust Agreement as a whole and not to any
particular Article, Section or other subdivision.
"Act" has the meaning specified in Section 6.8.
"Additional Amount" means, with respect to the Trust Securities, the
amount of Additional Interest (as defined in the Indenture), if any, paid by the
Parent on the Debt Securities.
"Additional Sums" means, with respect to the Trust Securities, the
amount of Additional Sums (as defined in the Indenture), if any, paid by the
Parent on the Debt Securities.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, provided, however that an Affiliate of the
Sponsor or the Parent shall be deemed not to include the Trust. For the purposes
of this definition, "control" when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly
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.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Certificate or beneficial interest therein, the
rules and procedures of the Euroclear system, of Clearstream Banking, societe
anonyme (or its successor), and of the Clearing Agency for such security, in
each case to the extent applicable to such transaction and as in effect from
time to time.
"Bank" has the meaning specified in the preamble to this Trust
Agreement.
"Bankruptcy Event" means, with respect to any Person:
(a) such Person, pursuant to or within the meaning of any
Bankruptcy Law (i) commences a voluntary case, (ii) consents to the
entry of an order for relief against it in an involuntary case, or
(iii) consents to the appointment of a Custodian of it or for all or
substantially all of its property, or
(b) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that: (i) is for relief against such
Person in an involuntary case, (ii) appoints a Custodian of such Person
or for all or substantially all of its property, or (iii) orders the
liquidation of such Person, and the order or decree remains unstayed
and in effect for 90 days.
"Bankruptcy Laws" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency,
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receivership, winding-up, liquidation, reorganization or relief of debtors or
any amendment to, succession to or change in any such law.
"Board of Trustees" means either the board of trustees of the Sponsor
or any committee of that board duly authorized to act hereunder.
"Book-Entry Preferred Securities Certificates" means a beneficial
interest in the Preferred Securities Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 5.11.
"Business Day" means any day other than a Saturday or Sunday or a day
on which banking institutions in New York, New York or in Boston, Massachusetts
are authorized or required by law or executive order to remain closed or a day
on which the Corporate Trust Office of the Property Trustee or the corporate
trust office of the Indenture Trustee, is closed for business.
"Certificate Depository Agreement" means the agreement among the Trust,
the Sponsor and The Depository Trust Company, as the initial Clearing Agency,
dated as of the Closing Date, relating to the Trust Securities Certificates
substantially in the form attached as Exhibit B, as the same may be amended and
supplemented from time to time.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended. The Depository Trust Company will be the initial Clearing Agency.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means the first Time of Delivery (as defined in the
Underwriting Agreement), which date is also the date of execution and delivery
of this Trust Agreement.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this instrument such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Securities Certificate" means a certificate evidencing
ownership of Common Securities, substantially in the form attached as Exhibit C.
"Common Security" means an undivided beneficial interest in the assets
of the Trust, having a Liquidation Amount with respect to the assets of the
Trust of $__ and having the rights provided therefor in this Trust Agreement,
including the right to receive Distributions and a Liquidation Distribution as
provided herein.
"Common Stock" means common shares of beneficial interest, $.01 par
value per share, of the Parent.
3
"Corporate Trust Office" means the principal corporate trust office of
the Property Trustee at which at any particular time its corporate trust
business shall be administered, which office at the date hereof is located at
______________________________________________ Attention: _____________________.
"Debt Security Redemption Date" means, with respect to any Debt
Securities to be redeemed under the Indenture, the date fixed for redemption
thereof under the Indenture.
"Debt Securities" means all of the Parent's $[.............] aggregate
principal amount [name of series of Debt Securities] issued pursuant to the
Indenture.
"Definitive Preferred Securities Certificates" means either or both (as
the context requires) of (x) Preferred Securities Certificates issued in
certificated, fully registered form as provided in Section 5.11(b) and (y)
Preferred Securities Certificates issued in certificated, fully registered form
as provided in Section 5.13.
"Direct Action" has the meaning specified in Section 6.8.
"Distribution Date" has the meaning specified in Section 4.1(a).
"Distributions" means amounts payable in respect of the Trust
Securities as provided in Section 4.1.
"Early Dissolution Event" has the meaning specified in Section 9.2.
"Event of Default" means the occurrence of an Indenture Event of
Default, whatever the reason for such Indenture 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.
"Exchange Agent" means any exchange agent appointed pursuant to Section
4.4(h).
"Exchange Notice" has the meaning specified in Section 4.4(b).
"Expiration Date" has the meaning specified in Section 9.1.
"Global Certificate" means a Preferred Security that is registered in
the Securities Register in the name of a Clearing Agency or a nominee thereof.
"Guarantee" means the Guarantee Agreement executed and delivered by the
Parent and [.......................................], a
[..........................................], as guarantee trustee,
contemporaneously with the execution and delivery of this Trust Agreement, for
the benefit of the Holders of the Preferred Securities, as amended from time to
time.
"Holder" means a Person in whose name a Trust Securities Certificate
representing a Trust Security is registered, such Person being a beneficial
owner within the meaning of the Maryland Business Trust Act.
4
"Indenture" means the Indenture, dated as of [................, ......]
between the Parent and the Indenture Trustee, as supplemented by the
Supplemental Indenture No. [...] thereto, dated as of [................,
.......], as the same may be amended or supplemented from time to time.
"Indenture Event of Default" means an "Event of Default" as defined in
the Indenture.
"Indenture Trustee" means [.................................], a
[.............................], as trustee under the Indenture.
"Investment Company Event" means the receipt by the Property Trustee,
on behalf of the Trust, of an Opinion of Counsel, rendered by a law firm having
a national tax and securities practice (which Opinion of Counsel shall not have
been rescinded by such law firm), to the effect that, as a result of the
occurrence of a change in law or regulation or a change in interpretation or
application of law or regulation by any legislative body, court, governmental
agency or regulatory authority (a "Change in 1940 Act Law"), there is more than
an insubstantial risk that the Trust is or will be considered an "investment
company" that is required to be registered under the 1940 Act, which Change in
1940 Act Law becomes effective on or after the date of original issuance of the
Preferred Securities under this Trust Agreement.
"Lien" means any lien, pledge, charge, encumbrance, mortgage, deed of
trust, adverse ownership interest, hypothecation, assignment, security interest
or preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever.
"Liquidation Amount" means an amount with respect to the assets of the
Trust equal to $[...] per Trust Security.
"Liquidation Date" means each date on which Debt Securities or cash are
to be distributed to Holders of Trust Securities in connection with a
dissolution and liquidation of the Trust pursuant to Section 9.4(a).
"Liquidation Distribution" has the meaning specified in Section 9.4(d).
"Maryland Business Trust Act" means Title 12 of the Corporations and
Associations Article of the Annotated Code of Maryland, as it may be amended
from time to time.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller, the
Secretary or an Assistant Secretary, of the Sponsor, and delivered to the
Property Trustee. Any Officers' Certificate delivered with respect to compliance
with a condition or covenant provided for in this Trust Agreement shall include:
(a) a statement that each officer signing the Officers'
Certificate has read the covenant or condition and the definitions
relating thereto; a brief statement of the nature
5
and scope of the examination or investigation undertaken by each
officer in rendering the Officers' Certificate;
(b) a statement that each officer has made such examination or
investigation as, in such officer's opinion, is necessary to enable
such officer to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(c) a statement as to whether, in the opinion of each such
officer, such condition or covenant has been complied with.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Trust, the Property Trustee or the Sponsor, and who may be an
employee of any thereof, and who shall be acceptable to the Property Trustee.
"Optional Redemption Price" means with respect to the Preferred
Securities (except as set forth below with respect to redemption upon the
occurrence of a Tax Event), the following percentages of the Liquidation Amounts
thereof, plus accumulated and unpaid Distributions, if any, to the date fixed
for redemption if redeemed during the twelve-month period commencing
[...........] in each of the following years indicated:
Year Redemption Price Year Redemption Price
------------------------------------------------------------------
[ ] [ ]% [ ] [ ]%
[ ] [ ]% [ ] [ ]%
[ ] [ ]% [ ] [ ]%
[ ] [ ]% [ ] and [ ]%
thereafter
In the event of a redemption of Trust Securities upon the occurrence of
a Tax Event, Trust Securities shall be redeemed at the redemption price of
$[...] per Trust Security and all accumulated and unpaid Distributions, if any,
to the date fixed for redemption.
"Original Trust Agreement" has the meaning specified in the recitals to
this Trust Agreement.
"Outstanding", when used with respect to Trust Securities, means, as of
the date of determination, all Trust Securities theretofore executed and
delivered under this Trust Agreement, except:
(a) Trust Securities theretofore cancelled by the Securities
Registrar or delivered to the Securities Registrar for cancellation or
tendered for conversion;
(b) Trust Securities for whose payment or redemption money in
the necessary amount has been theretofore deposited with the Property
Trustee or any Paying Agent for the Holders of such Trust Securities;
provided that, if such Trust Securities are to be
6
redeemed, notice of such redemption has been duly given pursuant to
this Trust Agreement;
(c) Trust Securities which have been exchanged for Debt
Securities pursuant to Section 4.4; and
(d) Trust Securities which have been paid or in exchange for
or in lieu of which other Trust Securities have been executed and
delivered pursuant to Section 5.5;
provided, however, that in determining whether the Holders of the requisite
Liquidation Amount of the Outstanding Trust Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, Trust
Securities owned by the Sponsor, any Trustee or any Affiliate of the Sponsor or
any Trustee shall be disregarded and deemed not to be Outstanding, except that
(a) in determining whether any Trustee shall be fully protected in relying upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Trust Securities that a Responsible Officer of the Property Trustee, or an
individual Regular Trustee, as the case may be, actually knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at any time when
all of the Outstanding Trust Securities are owned by the Sponsor, one or more of
the Regular Trustees and/or any such Affiliate. Trust Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Securities Registrar the pledgee's right
so to act with respect to such Trust Securities and that the pledgee is not the
Sponsor or any Affiliate of the Sponsor.
"Owner" means each Person who is the beneficial owner of a Book-Entry
Preferred Securities Certificate as reflected in the records of the Clearing
Agency or, if a Clearing Agency Participant is not the Owner, then as reflected
in the records of a Person maintaining an account with such Clearing Agency
(directly or indirectly, in accordance with the rules of such Clearing Agency).
"Parent" means Senior Housing Properties Trust, a Maryland real estate
investment trust and its successors and assigns.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 5.9.
"Payment Account" means a segregated non-interest bearing corporate
trust account maintained by the Property Trustee with the Bank in its trust
department for the benefit of the Securityholders in which all amounts paid in
respect of the Debt Securities will be held and from which the Property Trustee
shall make payments to the Securityholders in accordance with Section 4.1.
"Person" means any individual, corporation, partnership, joint venture,
association, joint stock company, trust, limited liability company or
corporation, unincorporated organization or government or any agency or
political subdivision thereof.
"Preferred Securities Certificate" means a certificate evidencing
ownership of Preferred Securities, substantially in the form attached as Exhibit
D.
7
"Preferred Security" means an undivided beneficial interest in the
assets of the Trust, having a Liquidation Amount with respect to the assets of
the Trust of $__ and having the rights provided therefor in this Trust
Agreement, including the right to receive Distributions and a Liquidation
Distribution as provided herein.
"Property Trustee" means the commercial bank or trust company
identified as the "Property Trustee" in the preamble to this Trust Agreement
solely in its capacity as Property Trustee of the Trust and not in its
individual capacity, or its successor in interest in such capacity, or any
successor property trustee appointed as herein provided.
"Redemption Date" means, with respect to any Trust Security to be
redeemed, each Debt Security Redemption Date.
"Redemption Price" means, with respect to any Trust Security, $__ per
Trust Security, plus accumulated and unpaid Distributions (including any
Additional Sums) to the date of redemption.
"Regular Trustee" means each individual named as a Regular Trustee in
the preamble to this Trust Agreement, each solely in his capacity as Regular
Trustee of the Trust and not in his individual capacity, or such Regular
Trustee's successor in interest in such capacity, or any successor in interest
in such capacity, or any successor Regular Trustee appointed as herein provided.
"Relevant Trustee" has the meaning specified in Section 8.9.
"Responsible Officer" when used with respect to the Property Trustee,
means the chairman or any vice-chairman of the board of directors, the chairman
or any vice-chairman of the executive committee of the board of directors, the
chairman of the trust committee, the president, any vice president, the
secretary, any assistant secretary, the treasurer, any assistant treasurer, the
cashier, any assistant cashier, any trust officer or assistant trust officer,
the controller or any assistant controller or any other officer of the Property
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 5.4.
"Securityholder" or "Holder" means a Person in whose name a Trust
Security or Securities is registered in the Securities Register; any such Person
shall be deemed to be a beneficial owner within the meaning of the Maryland
Business Trust Act.
"Special Event" means a Tax Event or an Investment Company Event.
"Sponsor" has the meaning specified in the preamble to this Trust
Agreement.
"Sponsor Indemnified Person" has the meaning specified in Section 8.6.
8
"Successor Property Trustee" has the meaning specified in Section 8.9.
"Successor Securities" has the meaning specified in Section 9.5.
"Super Majority" has the meaning specified in Section 8.2.
"Tax Event" means the receipt by the Property Trustee, on behalf of the
Trust, of an Opinion of Counsel, rendered by a law firm having a national tax
and securities practice (which Opinion of Counsel shall not have been rescinded
by such law firm), to the effect that, as a result of any amendment to, or
change (including any announced prospective change) in, the laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein affecting taxation, or as a result of any
official administrative pronouncement or judicial decision interpreting or
applying such laws or regulations, which amendment or change is effective or
such pronouncement or decision is announced on or after the date of issuance of
the Preferred Securities under this Trust Agreement and does not pertain to the
use of the proceeds of the issuance of the Debt Securities, there is more than
an insubstantial risk in each case after the date thereof that (i) the Trust is,
or will be within 90 days after the date thereof, subject to United States
federal income tax with respect to income received or accrued on the Debt
Securities, (ii) interest payable by the Parent on the Debt Securities is not,
or will not be, within 90 days after the date thereof, deductible, in whole or
in part, for United States federal income tax purposes or (iii) the Trust is, or
will be within 90 days after the date thereof, subject to more than de minimus
amount of other taxes, duties, assessments or other governmental charges.
"Trust" means the Maryland business trust continued hereby and
identified on the cover page of this Trust Agreement.
"Trust Agreement" means this Amended and Restated Trust Agreement, as
the same may be modified, amended or supplemented in accordance with the
applicable provisions hereof, including all exhibits hereto, including, for all
purposes of this Trust Agreement and any such modification, amendment or
supplement, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this Trust Agreement and any such modification, amendment or
supplement, respectively.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trust Property" means (a) the Debt Securities, (b) any cash on deposit
in, or owing to, the Payment Account and (c) all proceeds and rights in respect
of the foregoing to be held by the Property Trustee pursuant to the terms of
this Trust Agreement for the benefit of the Securityholders.
"Trust Security" means any one of the Common Securities or the
Preferred Securities.
"Trust Securities Certificate" means any one of the Common Securities
Certificates, the Global Certificates or the Definitive Preferred Securities
Certificates.
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"Trustees" means, collectively, the Property Trustee and the Regular
Trustees.
"Underwriting Agreement" means the Underwriting Agreement, dated as of
[...........,....], [including the Pricing Agreement dated [...........,....],
among [identify parties].
ARTICLE 2
ESTABLISHMENT OF THE TRUST
SECTION 2.1 Name. The Trust continued hereby shall be known as "SNH
Capital Trust [...], as such name may be modified from time to time by the
Regular Trustees following written notice to the Holders of Trust Securities and
the other Trustees, in which name the Trustees may conduct the business of the
Trust, make and execute contracts and other instruments on behalf of the Trust
and sue and be sued.
SECTION 2.2 Principal Place of Business; Registered Agent.
(a) The address of the principal office of the Trust is c/o Senior
Housing Properties Trust, 400 Centre Street, Newton, Massachusetts 02458 or such
other address as the Regular Trustees may designate by written notice to the
Sponsor. The address of the Maryland office of the Trust is c/o Ballard Spahr
Andrews & Ingersoll, LLP, 300 East Lombard Street, Baltimore, Maryland 21202 or
such other address as the Regular Trustees may designate by written notice to
the Sponsor.
(b) The name of the resident agent of the Trust in the State of
Maryland is James J. Hanks, Jr., 300 East Lombard Street, Baltimore, Maryland
21202. The resident agent is a citizen of and resides in the State of Maryland.
At any time, the Regular Trustees may designate by written notice to the Sponsor
another resident agent who is a citizen of and resides in the State of Maryland
or which is a Maryland corporation.
SECTION 2.3 Organizational Expenses. The Sponsor shall pay
organizational expenses of the Trust as they arise or shall, upon request of any
Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee. The Sponsor shall make no claim upon the Trust Property for the payment
of such expenses.
SECTION 2.4 Issuance of the Preferred Securities. On [.........,....],
the Sponsor on behalf of the Trust executed and delivered the Underwriting
Agreement. Contemporaneously with the execution and delivery of this Trust
Agreement, a Regular Trustee, on behalf of the Trust, shall execute in
accordance with Section 5.2 and deliver to the Underwriters named in the
Underwriting Agreement Preferred Securities Certificates, in an aggregate amount
of [..........] Preferred Securities having an aggregate Liquidation Amount of
$[..........], against receipt of the aggregate purchase price of such Preferred
Securities of $[..........], which amount the Regular Trustees shall promptly
deliver, or cause to be delivered, to the Property Trustee.
SECTION 2.5 Subscription and Purchase of Debt Securities; Issuance of
the Common Securities. Contemporaneously with the execution and delivery of this
Trust Agreement, the Regular Trustees, on behalf of the Trust, shall subscribe
to and purchase from the Parent Debt Securities, registered in the name of the
Property Trustee (in its capacity as such) and having an aggregate principal
amount equal to $[..........], and, in satisfaction of the purchase price for
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such Debt Securities, the Property Trustee, on behalf of the Trust, shall
deliver to the Parent the sum of $[..........]. Contemporaneously therewith, a
Regular Trustee, on behalf of the Trust, shall execute in accordance with
Section 5.2 and deliver to the Sponsor Common Securities Certificates registered
in the name of the Sponsor, in an aggregate amount of [..........] Common
Securities having an aggregate Liquidation Amount of $[..........] against
receipt by the Property Trustee of the aggregate purchase price of such Common
Securities from the Sponsor of the sum of $[..........].
SECTION 2.6 Declaration of Trust. The exclusive purposes and functions
of the Trust are (a) to issue and sell Trust Securities and use the proceeds
from such sale to acquire the Debt Securities, (b) to distribute the Trust's
income as provided in this Trust Agreement and (c) to engage in only those other
activities necessary or incidental thereto. The Trust shall not borrow money,
issue debt or reinvest proceeds derived from investments, mortgage or pledge any
of its assets or otherwise undertake (or permit to be undertaken) any activity
that would cause the Trust not to be classified for United States federal income
tax purposes as a grantor trust. The Sponsor hereby appoints the Trustees as
trustees of the Trust, to have all the rights, powers and duties to the extent
set forth herein, and the Trustees hereby accept such appointment, subject to
the terms and conditions hereof. The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Trust and the Securityholders. The Regular
Trustees shall have all rights, powers and duties set forth herein and in
accordance with applicable law with respect to accomplishing the purposes of the
Trust.
SECTION 2.7 Authorization to Enter into Certain Transactions.
(a) The Trustees shall conduct the affairs of the Trust in
accordance with the terms of this Trust Agreement. Subject to the limitations
set forth in Section 2.6 and paragraph (b) of this Section, and in accordance
with the following provisions (i) and (ii), the Trustees shall have the
exclusive power, duty and the authority to cause the Trust to engage in the
following activities:
(i) As among the Trustees, each Regular Trustee shall have the
exclusive power and authority to act on behalf of the Trust with
respect to the following matters:
(A) to issue and sell the Trust Securities, provided,
however, that the Trust may issue no more than one series of
Preferred Securities and no more than one series of Common
Securities, and, provided, further, that there shall be no
interests in the Trust other than the Trust Securities, and
the issuance of Trust Securities shall be limited to
simultaneous issuance of both Preferred Securities and Common
Securities on the Closing Date and any other date Preferred
Securities and Common Securities are sold pursuant to the
over-allotment option granted to the Underwriters named in the
Underwriting Agreement, subject to the issuance of Trust
Securities pursuant to Section 5.5 and Successor Securities
pursuant to Section 9.5;
(B) to cause the Trust to enter into, and to execute,
deliver and perform on behalf of the Trust, the Certificate
Depository Agreement and such other
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agreements as may be necessary or incidental to the purposes
and function of the Trust;
(C) to assist in the registration of the Preferred
Securities under the Securities Act of 1933, as amended, and
under state securities or blue sky laws, and the qualification
of this Trust Agreement as a trust indenture under the Trust
Indenture Act;
(D) to assist in the listing of the Preferred
Securities upon such securities exchange or exchanges, if any,
as shall be determined by the Sponsor and the registration of
the Preferred Securities under the Securities Exchange Act of
1934, as amended, and the preparation and filing of all
periodic and other reports and other documents pursuant to the
foregoing (only to the extent that such listing or
registration is requested by the Sponsor);
(E) to appoint a Paying Agent, a Securities Registrar
and an authenticating agent in accordance with this Trust
Agreement;
(F) to the extent and in the manner provided in this
Trust Agreement, to wind up the affairs of and liquidate the
Trust and to prepare, execute and file a certificate of
cancellation with the State Department of Assessments and
Taxation in accordance with the provisions of the Maryland
Business Trust Act;
(G) unless otherwise required by the Maryland
Business Trust Act or the Trust Indenture Act, to execute on
behalf of the Trust (either acting alone or together with any
other Regular Trustees) any documents that the Regular
Trustees have the power to execute pursuant to this Trust
Agreement;
(H) to take any action incidental to the foregoing as
the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement
including, but not limited to:
(i) causing the Trust not to be deemed to be an
Investment Company required to be registered
under the 1940 Act;
(ii) causing the Trust to be classified for
United States federal income tax purposes as
a grantor trust; and
(iii) cooperating with the Sponsor to ensure that
the Debt Securities will be treated as
indebtedness of the Parent for United States
federal income tax purposes;
provided that such action does not adversely affect in any
material respect the interests of Securityholders except as
otherwise provided in Section 10.2(a); and
(I) to execute all documents or instruments, perform
all duties and powers, and do all things for and on behalf of
the Trust in all matters necessary or incidental to the
foregoing.
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(ii) As among the Trustees, the Property Trustee shall have
the power, duty and authority to act on behalf of the Trust with
respect to the following matters:
(A) the establishment of the Payment Account;
(B) the receipt of and taking title to the Debt
Securities;
(C) the collection of interest, principal and any
other payments made in respect of the Debt Securities in the
Payment Account;
(D) the distribution from the Trust Property of
amounts owed to the Securityholders in respect of the Trust
Securities;
(E) the exercise of all of the rights, powers and
privileges of a holder of the Debt Securities;
(F) the sending of notices of default, other notices
and other information regarding the Trust Securities and the
Debt Securities to the Securityholders in accordance with this
Trust Agreement;
(G) the distribution of the Trust Property in
accordance with the terms of this Trust Agreement;
(H) to the extent provided in this Trust Agreement,
the winding up of the affairs of and liquidation of the Trust;
(I) after an Event of Default of which a Responsible
Officer of the Property Trustee has knowledge, the taking of
any action incidental to the foregoing as the Property Trustee
may from time to time determine is necessary or advisable to
give effect to the terms of this Trust Agreement and protect
and conserve the Trust Property for the benefit of the
Securityholders (without consideration of the effect of any
such action on any particular Securityholder);
(J) subject to this Section 2.7(a)(ii), the Property
Trustee shall have none of the duties, liabilities, powers or
the authority of the Regular Trustees set forth in Section
2.7(a)(i);
(K) to act as Paying Agent and/or Securities
Registrar to the extent appointed as such hereunder; and
(L) the taking and holding of title to Trust
Property.
(b) So long as this Trust Agreement remains in effect, the Trust
(or the Trustees acting on behalf of the Trust) shall not undertake any
business, activities or transaction except as expressly provided herein or
contemplated hereby. In particular, notwithstanding anything in this Trust
Agreement to the contrary, the Trust shall not, and the Trustees shall not and
shall not cause the Trust to
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(i) invest any proceeds received by the Trust from holding the
Debt Securities (rather, the Trustees shall distribute all such
proceeds to the Securityholders pursuant to the terms of this Trust
Agreement and the Trust Securities), acquire any investments or engage
in any activities not authorized by this Trust Agreement, (ii) sell,
assign, transfer, exchange, mortgage, pledge, set-off or otherwise
dispose of any of the Trust Property or interests therein, including to
Securityholders, except as expressly provided herein, (iii) take any
action that would cause the Trust to fail or cease to qualify as a
"grantor trust" for United States federal income tax purposes, (iv)
make any loans or incur any indebtedness for borrowed money or issue
any other debt, (v) take or consent to any action that would result in
the placement of a Lien on any of the Trust Property, (vi) possess any
power or otherwise act in such a way as to vary the Trust assets or the
terms of the Trust Securities in any way whatsoever except as permitted
by the terms of this Trust Agreement, or (vii) issue any securities or
other evidences of beneficial ownership of, or beneficial interest in,
the Trust other than the Trust Securities. The Regular Trustees shall
defend all claims and demands of all Persons at any time claiming any
Lien on any of the Trust Property adverse to the interest of the Trust
or the Securityholders in their capacity as Securityholders.
(c) In connection with the issue and sale of the Preferred
Securities, the Sponsor shall have the right and responsibility to assist the
Trust with respect to, or effect on behalf of the Trust, the following actions
(and any actions taken by the Sponsor in furtherance of the following prior to
the date of this Trust Agreement are hereby ratified and confirmed in all
respects):
(i) to file by the Trust with the Commission and to execute on
behalf of the Trust a registration statement on the appropriate form in
relation to the Preferred Securities, including any amendments thereto;
(ii) to determine the states and foreign jurisdictions in
which to take appropriate action to qualify or register for resale all
or part of the Preferred Securities and to do any and all such acts,
other than actions which must be taken by or on behalf of the Trust,
and advise the Trustees of actions they must take on behalf of the
Trust, and prepare for execution and filing any documents to be
executed and filed by the Trust or on behalf of the Trust, as the
Sponsor deems necessary or advisable in order to comply with the
applicable laws of any such states and foreign jurisdictions;
(iii) to the extent necessary, to prepare for filing by the
Trust with the Commission and to execute on behalf of the Trust a
registration statement on Form 8-A relating to the registration of the
Preferred Securities under Section 12(b) or 12(g) of the Securities
Exchange Act of 1934, as amended, including any amendments thereto (it
being understood that neither the Trust, the Sponsor nor the Parent has
any obligation under the Indenture, the Underwriting Agreement or the
Trust Agreement to register any Trust Securities under the Securities
Exchange Act of 1934, as amended, or to list any Trust Securities on
any securities exchange);
(iv) to negotiate, and to execute and deliver, on behalf of
the Trust, the Underwriting Agreement; and
14
(v) any other actions necessary or incidental to carry out any
of the foregoing activities.
(vi) Notwithstanding anything herein to the contrary, the
Regular Trustees are authorized and directed to conduct the affairs of
the Trust and to operate the Trust so that the Trust will not be deemed
to be an "investment company" required to be registered under the 1940
Act, or taxed as a corporation for United States federal income tax
purposes and so that the Debt Securities will be treated as
indebtedness of the Parent for United States federal income tax
purposes. In this connection, the Sponsor and the Regular Trustees are
authorized to take any action, not inconsistent with applicable law,
the Certificate of Trust or this Trust Agreement, that each of the
Sponsor and the Regular Trustees determines in their discretion to be
necessary or desirable for such purposes, so long as such action does
not adversely affect in any material respect the interests of the
Holders of the Preferred Securities except as otherwise provided in
Section 10.2(a).
SECTION 2.8 Assets of Trust. The assets of the Trust shall consist of
only the Trust Property.
SECTION 2.9 Title to Trust Property. Legal title to all Trust Property
shall be vested at all times in the Property Trustee (in its capacity as such)
and shall be held and administered by the Property Trustee for the benefit of
the Trust and the Securityholders in accordance with this Trust Agreement. The
Securityholders shall not have legal title to any part of the assets of the
Trust, but shall have an undivided beneficial interest in the assets of the
Trust.
ARTICLE 3
PAYMENT ACCOUNT
SECTION 3.1 Payment Account.
(a) On or prior to the Closing Date, the Property Trustee shall
establish the Payment Account. The Property Trustee and any agent of the
Property Trustee shall have exclusive control and sole right of withdrawal with
respect to the Payment Account for the purpose of making deposits in and
withdrawals from the Payment Account in accordance with this Trust Agreement.
All monies and other property deposited or held from time to time in the Payment
Account shall be held by the Property Trustee in the Payment Account for the
exclusive benefit of the Securityholders and for distribution as herein
provided, including (and subject to) any priority of payments provided for
herein.
(b) The Property Trustee shall deposit in the Payment Account,
promptly upon receipt, all payments of principal of or interest on, and any
other payments or proceeds with respect to, the Debt Securities. Amounts held in
the Payment Account shall not be invested by the Property Trustee pending
distribution thereof.
ARTICLE 4
DISTRIBUTIONS; REDEMPTION; EXCHANGE[; CONVERSION]
SECTION 4.1 Distributions.
15
(a) Distributions on the Trust Securities shall be cumulative, and
shall accrue from the date of original issuance, or the most recent Distribution
Date (as defined herein) and, except in the event that the Sponsor exercises its
right to defer the payment of interest on the Debt Securities pursuant to the
Indenture, shall be payable quarterly in arrears on each [describe payment
dates] of each year, commencing on .........,.... (which dates correspond to the
interest payment dates on the Debt Securities), when, as and if available for
payment by the Property Trustee, as further described in paragraph (c) of this
Section 4.1. If any date on which Distributions are otherwise payable on the
Trust Securities is not a Business Day, then the payment of such Distributions
shall be made on the next succeeding day which is a Business Day (and no
interest shall accrue for the period from and after such date until the next
succeeding Business Day) with the same force and effect as if made on such date
(each date on which Distributions are payable in accordance with this Section
4.1(a), a "Distribution Date").
(b) The Trust Securities represent undivided beneficial interests
in the Trust Property, and the Distributions on the Trust Securities shall be
payable at a rate of [ ]% per annum of the Liquidation Amount of the Trust
Securities, such rate being the rate of interest payable on the Debt Securities
to be held by the Property Trustee. The amount of Distributions payable for any
period shall be computed on the basis of a 360-day year of twelve 30-day months.
For periods less than a full month, Distributions shall reflect interest on Debt
Securities computed on the basis of the actual number of elapsed days based on a
360-day year. The amount of Distributions payable for any period shall include
the Additional Amounts, if any.
(c) Distributions on the Trust Securities shall be made by the
Property Trustee from the Payment Account and shall be payable on each
Distribution Date only to the extent that the Trust has funds then on hand and
available in the Payment Account for the payment of such Distributions.
(d) Distributions on the Trust Securities with respect to a
Distribution Date shall be payable to the Holders thereof as they appear on the
Securities Register for the Trust Securities on the relevant record date, which
shall be the date which is the fifteenth day (whether or not a Business Day)
next preceding such Distribution Date.
SECTION 4.2 Redemption.
(a) Upon an optional redemption (as set forth in the Indenture) of
Debt Securities, the proceeds from such redemption shall be applied to redeem
Trust Securities having an aggregate Liquidation Amount equal to the aggregate
principal amount of the Debt Securities so redeemed by the Parent, including
pursuant to Section 4.4, at the Optional Redemption Price, and upon a mandatory
redemption (as set forth in the Indenture) of Debt Securities, the proceeds from
such redemption shall be applied to redeem Trust Securities, having an aggregate
Liquidation Amount equal to the aggregate principal amount of the Debt
Securities so redeemed by the Parent, at the Redemption Price. The Trust may not
redeem fewer than all the Outstanding Trust Securities unless all accrued and
unpaid Distributions have been paid on all Trust Securities for all quarterly
Distribution periods terminating on or prior to the date of redemption.
16
(b) Notice of redemption (which notice will be irrevocable) shall
be given by the Property Trustee by first-class mail, postage prepaid, mailed
not less than 30 nor more than 60 days prior to the Redemption Date to the
Sponsor and each Holder of Trust Securities to be redeemed, at such Holder's
address as it appears in the Securities Register. All notices of redemption
shall state:
(i) the Redemption Date;
(ii) the Redemption Price or the Optional Redemption Price, as
the case may be;
(iii) the record date for the determination of Holders
entitled to receive payment of the Redemption Price or Optional
Redemption Price, as the case may be, as provided in Section 4.2(d);
(iv) the CUSIP number;
(v) if less than all of the Outstanding Trust Securities are
to be redeemed, the identification and the aggregate Liquidation Amount
of the particular Trust Securities to be redeemed;
(vi) [the Conversion Price and that a Holder of Preferred
Securities who desires to convert such Preferred Securities called for
redemption must satisfy the requirements for conversion contained in
Section 4.3 below];
(vii) that on the Redemption Date, the Redemption Price or the
Optional Redemption Price, as the case may be, will become due and
payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date; and
the place or places where such Trust Securities are to be surrendered
for payment of the Redemption Price or the Optional Redemption Price,
as the case may be.
(c) The Trust Securities redeemed on each Redemption Date shall be
redeemed at the Redemption Price or the Optional Redemption Price, as the case
may be, with the proceeds from the contemporaneous redemption of Debt
Securities. Redemptions of the Trust Securities shall be made and the Redemption
Price or the Optional Redemption Price, as the case may be, shall be payable on
each Redemption Date only to the extent that the Trust has funds then on hand
and available in the Payment Account for the payment of such Redemption Price or
the Optional Redemption Price, as the case may be.
(d) If the Property Trustee gives a notice of redemption in
respect of any Preferred Securities, then, by 12:00 noon, New York City time, on
the Redemption Date, subject to Section 4.2(c), the Property Trustee will, so
long as and to the extent the Preferred Securities are in book-entry-only form,
irrevocably deposit with the Clearing Agency for the Preferred Securities funds
sufficient to pay the applicable Redemption Price. If the Preferred Securities
are no longer in book-entry-only form, the Property Trustee, subject to Section
4.2(c), will irrevocably deposit with the Paying Agent funds sufficient to pay
the applicable Redemption Price or Optional Redemption Price, as the case may
be, on such Preferred Securities held in
17
certificated form and will give the Paying Agent irrevocable instructions and
authority to pay the Redemption Price or the Optional Redemption Price, as the
case may be, to the Holders thereof upon surrender of their Preferred Securities
Certificates. Notwithstanding the foregoing, Distributions payable on or prior
to the Redemption Date for any Trust Securities called for redemption shall be
payable to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates. If notice of redemption shall have been given and funds
deposited as required, then, upon the date of such deposit, all rights of
Securityholders holding Trust Securities so called for redemption will cease,
except [(i)] the right of such Securityholders to receive the Redemption Price
or the Optional Redemption Price, as the case may be, but without interest[, and
(ii) the right to convert such Preferred Securities into Common Stock in the
manner provided in Section 4.3 through the close of business on the Redemption
Date]; and such Trust Securities will cease to be Outstanding. In the event that
any date on which any Redemption Price or the Optional Redemption Price, as the
case may be, is payable is not a Business Day, then payment of the Redemption
Price or the Optional Redemption Price, as the case may be, payable on such date
will be made on the next succeeding day which is a Business Day (and without any
interest or other payment in respect of any such delay), except that, if such
Business Day is in the next succeeding calendar year, such payment shall be made
on the immediately preceding Business Day, in each case, with the same force and
effect as if made on such date. Payment of the Redemption Price or the Optional
Redemption Price, as the case may be, shall be made to the Holders of such Trust
Securities as they appear on the Securities Register for the Trust Securities on
the relevant record date, which shall be the date which is the fifteenth day
(whether or not a Business Day) preceding such Redemption Date.
(e) If less than all the Outstanding Trust Securities are to be
redeemed on a Redemption Date, then the aggregate Liquidation Amount of Trust
Securities to be redeemed shall be allocated on a pro rata basis (based on
Liquidation Amounts) among the Common Securities and the Preferred Securities
that are to be redeemed. The particular Preferred Securities to be redeemed
shall be selected not more than 60 days prior to the Redemption Date by the
Property Trustee from the Outstanding Preferred Securities not previously called
for redemption, by lot or by such other method as the Property Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to $[.....] or an integral multiple of $[.....] in excess
thereof) of the Liquidation Amount of the Preferred Securities. The Property
Trustee shall promptly notify the Securities Registrar [and the Conversion
Agent] in writing of the Preferred Securities selected for redemption and, in
the case of any Preferred Securities selected for partial redemption, the
Liquidation Amount thereof to be redeemed; it being understood that, in the case
of Preferred Securities registered in the name of and held of record by the
Clearing Agency (or any successor) or any nominee, the distribution of the
proceeds of such redemption will be made in accordance with the procedures of
the Clearing Agency or its nominee. For all purposes of this Trust Agreement,
unless the context otherwise requires, all provisions relating to the redemption
of Preferred Securities shall relate, in the case of any Preferred Securities
redeemed or to be redeemed only in part, to the portion of the Liquidation
Amount of Preferred Securities which has been or is to be redeemed. In the event
of any redemption in part, the Trust shall not be required to (i) issue,
register the transfer of or exchange of any Preferred Security during a period
beginning at the opening of business 15 days before any selection for redemption
of Preferred Securities and ending at the close of business on the earliest date
in which the relevant notice of redemption is deemed to have been given to all
18
Holders of Preferred Securities to be so redeemed or (ii) register the transfer
of or exchange of any Preferred Securities so selected for redemption, in whole
or in part, except for the unredeemed portion of any Preferred Securities being
redeemed in part.
(f) In the event of any redemption, the Trust shall not be
required to issue, register the transfer of or register the exchange of any
Preferred Security during a period beginning at the opening of business 15 days
before any Redemption Date and ending at the close of business on such
Redemption Date.
SECTION 4.3 [Conversion/Reserved]. [If applicable, this section will
specify the rights of Holders of Trust Securities to cause a conversion agent
(the "Conversion Agent") to convert Trust Securities, on behalf of the
converting Holders.]
SECTION 4.4 Special Event Exchange or Redemption.
(a) If a Special Event shall occur and be continuing, the Property
Trustee shall direct the Exchange Agent to exchange all Outstanding Trust
Securities for Debt Securities having a principal amount equal to the aggregate
Liquidation Amount of the Trust Securities to be exchanged and with accrued
interest in an amount equal to any unpaid Distribution (including any Additional
Amounts) on the Trust Securities; provided, however, that, in the case of a Tax
Event, the Sponsor shall have the right to (i) direct that less than all, or
none, as appropriate, of the Trust Securities be so exchanged if and for so long
as the Parent shall have elected to pay any Additional Sums such that the amount
received by Holders of Trust Securities not so exchanged in respect of
Distributions and other distributions are not reduced as a result of such Tax
Event, and shall not have revoked any such election or failed to make such
payments or (ii) cause the Trust Securities to be redeemed in the manner set
forth below. If a Tax Event shall occur and be continuing, the Parent shall have
the right, upon not less than 30 nor more than 60 days' notice, to redeem the
Debt Securities, in whole or in part, for cash upon the later of (i) 90 days
following the occurrence of such Tax Event or (ii) [......................].
Promptly following such redemption, Trust Securities with an aggregate
Liquidation Amount equal to the aggregate principal amount of the Debt
Securities so redeemed will be redeemed by the Trust at the Optional Redemption
Price applicable in the event of a redemption upon the occurrence of a Tax Event
on a pro rata basis.
(b) Notice of any exchange pursuant to this Section 4.4 (an
"Exchange Notice") of the Trust Securities, which Exchange Notice shall be
irrevocable, will be given by the Property Trustee by first-class mail to the
Sponsor and to each record Holder of Trust Securities to be exchanged not fewer
than 30 nor more than 60 days prior to the date fixed for exchange thereof. For
purposes of the calculation of the date of exchange and the dates on which
notices are given pursuant to this paragraph (b), an Exchange Notice shall be
deemed to be given on the day such notice is first mailed by first-class mail,
postage prepaid, to each Holder. Each Exchange Notice shall be addressed to each
Holder of Trust Securities at the address of such Holder appearing in the
Securities Register. Each Exchange Notice shall state: (A) the exchange date;
(B) the aggregate Liquidation Amount and any unpaid Distributions (including any
Additional Amounts) on the Trust Securities to be exchanged and the aggregate
principal amount and any accrued interest on the Debt Securities to be exchanged
therefor; (C) that on the exchange date the Trust Securities to be so exchanged
shall be exchanged for Debt Securities and
19
that Distributions on the Trust Securities so exchanged will cease to accumulate
on and after said date; (D) the record date for the determination of Holders of
Trust Securities to be exchanged as provided in Section 4.4(g); and (E) the
identity of the Exchange Agent, if any, and the place or places where each Trust
Certificate to be exchanged is to be surrendered in exchange for Debt
Securities. No defect in the Exchange Notice or in the mailing thereof with
respect to any Trust Security shall affect the validity of the exchange
proceedings for any other Trust Security.
(c) In the event that fewer than all the Outstanding Preferred
Securities are to be exchanged, then, on the exchange date, (i) if all of the
Outstanding Preferred Securities are represented by Definitive Preferred
Securities Certificates, the particular Preferred Securities to be exchanged
will be selected by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption or exchange on a pro rata basis,
and (ii) if all of the Outstanding Preferred Securities are represented by Book-
Entry Preferred Securities Certificates, the Property Trustee shall provide for
the selection for exchange of a portion of the Global Certificate representing
the Book-Entry Preferred Securities Certificates on a pro rata basis. In the
case of clause (ii) above, the particular Book-Entry Preferred Securities
Certificates to be exchanged shall be selected in accordance with the applicable
rules and procedures for the Clearing Agency in whose name, or whose nominee's
name, such Global Certificate is then held. Any Preferred Securities Certificate
that is to be exchanged only in part shall be surrendered with due endorsement
or by a written instrument of transfer fully executed by the Holder thereof (or
its attorney duly authorized in writing) and the Trust shall prepare and deliver
to such Holder, without service charge, a new Preferred Securities Certificate
or Certificates in aggregate stated Liquidation Amount equal to, and in exchange
for, the unredeemed portion of the Preferred Securities Certificate so
surrendered. The Common Securities shall be exchanged in a similar manner.
(d) In the event of an exchange pursuant to this Section 4.4, on
the date fixed for any such exchange, (i) if the Preferred Securities are
represented by Book-Entry Preferred Securities Certificates, the Clearing Agency
or its nominee, as the record Holder of the Preferred Securities, will exchange
through the Exchange Agent the Global Certificate representing the Preferred
Securities to be exchanged for a registered Global Certificate or certificates
representing the Debt Securities to be delivered upon such exchange, (ii) if the
Preferred Securities are represented by Definitive Preferred Securities
Certificates, the certificates representing the Preferred Securities to be so
exchanged will be deemed to represent Debt Securities having a principal amount
equal to the aggregate stated Liquidation Amount of such Preferred Securities
until such certificates are presented to the Exchange Agent for exchange for
definitive certificates representing Debt Securities and (iii) all rights of the
Holders of the Preferred Securities so exchanged will cease, except for the
right of such Holders to receive Debt Securities. The Common Securities shall be
exchanged in a similar manner.
(e) Each Holder, by becoming a party to this Trust Agreement
pursuant to Section 10.11 of this Trust Agreement, will be deemed to have agreed
to be bound by these exchange provisions in regard to the exchange of Trust
Securities for Debt Securities pursuant to the terms described above.
(f) Nothing in this Section 4.4 shall limit the requirement of the
Trust to withhold taxes pursuant to the terms of the Trust Securities or as set
forth in this Trust
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Agreement or otherwise require the Property Trustee or the Trust to pay any
amounts on account of such withholdings.
(g) An exchange of Trust Securities for Debt Securities pursuant
to this Section 4.4 shall be made to Holders of Trust Securities as they appear
on the Securities Register for Trust Securities on the relevant record date,
which shall be the date which is the fifteenth day (whether or not a Business
Day) preceding the exchange date.
(h) If a Special Event shall occur and be continuing, the Trust
shall maintain an office or agency (the "Exchange Agent") for the purposes
specified in this Section 4.4. The Regular Trustees may remove any Exchange
Agent if such Trustees determine in their sole discretion that the Paying Agent
shall have failed to perform its obligations under this Trust Agreement in any
material respect. The Exchange Agent shall initially be the Property Trustee.
Any Person acting as Exchange Agent shall be permitted to resign as Exchange
Agent upon 30 days' written notice to the Property Trustee and the Sponsor;
provided, however, that no such resignation of the Exchange Agent shall be
effective until a successor Exchange Agent has been appointed and has accepted
such appointment by instrument executed by such successor Exchange Agent and
delivered to the Trust, the Sponsor and the resigning Exchange Agent. In the
event that the Property Trustee shall no longer be the Exchange Agent or a
successor Exchange Agent shall resign or its authority to act be revoked, the
Regular Trustees shall appoint a successor that is acceptable to the Property
Trustee and the Sponsor to act as Exchange Agent. The provisions of Sections
8.1, 8.3 and 8.6 shall apply to the Property Trustee also in its role as
Exchange Agent, for so long as the Property Trustee shall act as Exchange Agent
and, to the extent applicable, to any other exchange agent appointed hereunder.
SECTION 4.5 Subordination of Common Securities. Payment of
Distributions (including Additional Amounts, if applicable) on, and the
Redemption Price of, the Trust Securities, as applicable, shall be made pro rata
based on the Liquidation Amount of the Trust Securities; provided, however, that
if on any Distribution Date or Redemption Date an Event of Default shall have
occurred and be continuing, no payment of any Distribution (including Additional
Amounts, if applicable) on, or the Redemption Price of, any Common Security, and
no other payment on account of the redemption, liquidation or other acquisition
of Common Securities, shall be made unless payment in full in cash of all
accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all Distribution periods
terminating on or prior thereto, or in the case of payment of the Redemption
Price the full amount of such Redemption Price on all Outstanding Preferred
Securities to be redeemed, shall have been made or provided for, and all funds
immediately available to the Property Trustee shall first be applied to the
payment in full in cash of all Distributions (including Additional Amounts, if
applicable) on, or the Redemption Price of, Preferred Securities then due and
payable.
SECTION 4.6 Payment Procedures. Payments in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, in accordance with
the Certificate Depositary Agreement on the applicable Distribution Dates.
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Payments in respect of the Common Securities shall be made in such manner as
shall be mutually agreed between the Property Trustee and the Holder of the
Common Securities.
SECTION 4.7 Tax Returns and Reports. The Regular Trustees shall prepare
(or cause to be prepared), at the Sponsor's expense, and file all United States
federal, state and local tax and information returns and reports required to be
filed by or in respect of the Trust. In this regard, the Regular Trustees shall
(a) prepare and file (or cause to be prepared or filed) Form 1041 or the
appropriate Internal Revenue Service form required to be filed in respect of the
Trust in each taxable year of the Trust and (b) prepare and furnish (or cause to
be prepared and furnished) to each Securityholder a Form 1099 or the appropriate
Internal Revenue Service form required to be furnished to such Securityholder or
the information required to be provided on such form. The Regular Trustees shall
provide the Sponsor with a copy of all such returns, reports and schedules
promptly after such filing or furnishing. The Trustees shall comply with United
States federal withholding and backup withholding tax laws and information
reporting requirements with respect to any payments to Securityholders under the
Trust Securities.
SECTION 4.8 Payment of Taxes, Duties, Etc., of the Trust. Upon receipt
under the Debt Securities of Additional Sums, the Property Trustee, upon receipt
of written notice from the Sponsor or the Regular Trustees, shall promptly pay
from such Additional Sums any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.
SECTION 4.9 Payments under Indenture. Any amount payable hereunder to
any Holder of Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder (or any Owner with respect thereto) has
directly received pursuant to Section [....] of the Indenture in accordance with
the terms of Section 6.8 hereof.
ARTICLE 5
TRUST SECURITIES CERTIFICATES
SECTION 5.1 Initial Ownership. Upon the creation of the Trust and until
the issuance of the Trust Securities, and at any time during which no Trust
Securities are Outstanding, the Sponsor shall be the sole beneficial owner of
the Trust.
SECTION 5.2 The Trust Securities Certificates. The Preferred Securities
Certificates shall be issued in minimum denominations of $[.....] Liquidation
Amount and integral multiples of $[.....]in excess thereof, and the Common
Securities Certificates shall be issued in denominations of $[.....]Liquidation
Amount and integral multiples thereof. The consideration received by the Trust
for the issuance of the Trust Securities shall constitute a contribution to the
capital of the Trust and shall not constitute a loan to the Trust. The Trust
Securities Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of at least one Regular Trustee and authenticated by the
Property Trustee. Preferred Securities initially will be represented by one or
more certificates in registered global form (the "Global Certificates"). Trust
Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Trust Agreement, notwithstanding that such individuals or
any of them shall have ceased to be so authorized prior to the delivery of
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such Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee's name
pursuant to Section 5.4.
SECTION 5.3 Delivery of Trust Securities Certificates. On the Closing
Date, the Regular Trustees shall cause Trust Securities Certificates, in an
aggregate Liquidation Amount as provided in Sections 2.4 and 2.5, to be executed
on behalf of the Trust and delivered to or upon the written order of the
Sponsor, signed by its Chairman of the Board, any Vice Chairman, its President,
any Senior Vice President or any Vice President, Treasurer or Assistant
Treasurer or Controller without further corporate action by the Sponsor, in
authorized denominations.
A Trust Security Certificate shall not be valid until authenticated by
the manual signature of an authorized signatory of the Property Trustee. The
signature shall be conclusive evidence that the Trust Security Certificate has
been authenticated under this Trust Agreement. Upon a written order of the Trust
signed by one Regular Trustee, the Property Trustee shall authenticate the Trust
Security Certificates for original issue.
The Property Trustee may appoint an authenticating agent acceptable to
the Regular Trustees to authenticate Trust Security Certificates. An
authenticating agent may authenticate Trust Security Certificates whenever the
Property Trustee may do so. Each reference in this Trust Agreement to
authentication by the Property Trustee includes authentication by such agent. An
authenticating agent has the same rights as the Property Trustee to deal with
the Sponsor or an Affiliate with respect to the authentication of Trust
Securities.
SECTION 5.4 Registration of Transfer and Exchange of Preferred
Securities; Restrictions on Transfer. The Securities Registrar shall keep or
cause to be kept, at the office or agency maintained pursuant to Section 5.8, a
Securities Register in which, subject to such reasonable regulations as it may
prescribe, the Securities Registrar shall provide for the registration of
Preferred Securities Certificates and Common Securities Certificates (subject to
Section 5.10 in the case of the Common Securities Certificates) and registration
of transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.
Upon surrender for registration of transfer of any Preferred Security
at an office or agency of the Securities Registrar designated pursuant to
Section 5.8 for such purpose, a Regular Trustee shall execute on behalf of the
Trust by manual or facsimile signature, and the Property Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Preferred Securities of any authorized
denominations and of a like aggregate Liquidation Amount.
At the option of the Holder, and subject to the other provisions of
this Section 5.4, Preferred Securities may be exchanged for other Preferred
Securities of any authorized denomination and of a like Liquidation Amount, upon
surrender of the Preferred Securities to be exchanged at any such office or
agency. Whenever any Preferred Securities are so surrendered for exchange, a
Regular Trustee shall execute on behalf of the Trust by manual or facsimile
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signature, and the Property Trustee shall authenticate and deliver, the
Preferred Securities which the Holder making the exchange is entitled to
receive.
All Preferred Securities issued upon any registration of transfer or
exchange of Preferred Securities shall be entitled to the same benefits under
this Trust Agreement as the Preferred Securities surrendered upon such
registration of transfer or exchange.
Every Preferred Security presented or surrendered for registration of
transfer or for exchange shall (if so requested by the Sponsor or the Securities
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Sponsor and the Securities Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Preferred Securities Certificates, but the Securities Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any transfer or exchange of Preferred
Securities Certificates.
SECTION 5.5 Mutilated, Destroyed, Lost or Stolen Trust Securities
Certificates. If (a) any mutilated Trust Securities Certificate shall be
surrendered to the Securities Registrar, or if the Securities Registrar shall
receive evidence to its satisfaction of the destruction, loss or theft of any
Trust Securities Certificate and (b) there shall be delivered to the Securities
Registrar and the Regular Trustees such security or indemnity as may be required
by them to save each of them harmless, then in the absence of notice that such
Trust Securities Certificate shall have been acquired by a bona fide purchaser,
the Regular Trustees, or any one of them, on behalf of the Trust shall execute
and make available for authentication and delivery, in exchange for or in lieu
of any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like denomination. In connection with the
issuance of any new Trust Securities Certificate under this Section, the
Securities Registrar may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection therewith.
Any duplicative Trust Securities Certificate issued pursuant to this Section
shall constitute conclusive evidence of an undivided beneficial interest in the
assets of the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Trust Securities Certificate shall be found at any time.
SECTION 5.6 Persons Deemed Securityholders. Each Trustee and the
Securities Registrar shall treat the Person in whose name any Trust Securities
Certificate shall be registered in the Securities Register as the owner of such
Trust Securities Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and none of the Trustees nor the Securities
Registrar shall be bound by any notice to the contrary.
SECTION 5.7 Access to List of Securityholders' Names and Addresses. The
Regular Trustees or the Sponsor shall furnish or cause to be furnished (unless
the Property Trustee is acting as Securities Registrar with respect to the Trust
Securities under the Trust Agreement) a list, in such form as the Property
Trustee may reasonably require, of the names and addresses of the
Securityholders as of the most recent record date (a) to the Property Trustee,
quarterly at least five Business Days before each Distribution Date, and (b) to
the Property Trustee, promptly after
24
receipt by the Sponsor of a written request therefor from the Property Trustee
in order to enable the Property Trustee to discharge its obligations under this
Trust Agreement, in each case to the extent such information is in the
possession or control of the Regular Trustees or the Sponsor and is not
identical to a previously supplied list or has not otherwise been received by
the Property Trustee in its capacity as Securities Registrar. The rights of
Securityholders to communicate with other Securityholders with respect to their
rights under this Trust Agreement or under the Trust Securities, and the
corresponding rights of the Trustee shall be as provided in the Trust Indenture
Act. Each Holder, by receiving and holding a Trust Securities Certificate, and
each Owner shall be deemed to have agreed not to hold the Sponsor, the Property
Trustee or the Regular Trustees accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived.
SECTION 5.8 Maintenance of Office or Agency. The Securities Registrar
shall maintain in The City of New York an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer, exchange or conversion and where notices and demands
to or upon the Trustees in respect of the Trust Securities Certificates may be
served. The Securities Registrar initially designates
[................................], New York, New York [.....], Attention:
[.................], as its principal corporate trust office for such purposes.
The Securities Registrar shall give prompt written notice to the Sponsor and to
the Securityholders of any change in the location of the Securities Register or
any such office or agency.
SECTION 5.9 Appointment of Paying Agent. In the event that the
Preferred Securities are not in book-entry form only, the Trust shall maintain
in the Borough of Manhattan, City of New York, an office or agency (the "Paying
Agent") where the Preferred Securities may be presented for payment. The Paying
Agent shall make Distributions to Securityholders from the Payment Account and
shall report the amounts of such Distributions to the Property Trustee and the
Regular Trustees. Any Paying Agent shall have the revocable power to withdraw
funds from the Payment Account for the purpose of making the Distributions
referred to above. The Regular Trustees may revoke such power and remove the
Paying Agent if such Trustees determine in their sole discretion that the Paying
Agent shall have failed to perform its obligations under this Trust Agreement in
any material respect. The Paying Agent shall initially be the Property Trustee,
and any co-paying agent chosen by the Property Trustee and acceptable to the
Regular Trustees and the Sponsor. Any Person acting as Paying Agent shall be
permitted to resign as Paying Agent upon 30 days' written notice to the Property
Trustee and the Sponsor; provided, however, that no such resignation of the
Paying Agent shall be effective until a successor Paying Agent has been
appointed and has accepted such appointment by instrument executed by such
successor Paying Agent and delivered to the Trust, the Sponsor and the resigning
Paying Agent. In the event that the Property Trustee shall no longer be the
Paying Agent or a successor Paying Agent shall resign or its authority to act be
revoked, the Regular Trustees shall appoint a successor that is acceptable to
the Property Trustee and the Sponsor to act as Paying Agent (which shall be a
bank or trust company). Each successor Paying Agent or any additional Paying
Agent shall agree with the Trustees that, as Paying Agent, such successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Securityholders in trust for the benefit of the Securityholders
entitled thereto until such sums shall be paid to each Securityholder. The
Paying Agent shall return all unclaimed funds to the Property Trustee and upon
removal of a Paying Agent such Paying Agent shall also return all funds in its
possession to
25
the Property Trustee. The provisions of Sections 8.1, 8.3 and 8.6 shall apply to
the Property Trustee also in its role as Paying Agent, for so long as the
Property Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 5.10 Ownership of Common Securities by Sponsor. Upon the
issuance of Common Securities as provided for in Section 2.5, the Sponsor shall
acquire beneficial and record ownership of the Common Securities. The Parent has
covenanted in the Guarantee to maintain directly or indirectly 100% ownership of
the Common Securities; provided that any successor of the Parent under the
Indenture may succeed to the Parent's ownership of the Common Securities. To the
fullest extent permitted by law, any attempted transfer of the Common Securities
in violation of that covenant shall be void. The Regular Trustees shall cause
each Common Securities Certificate to contain a legend stating, "THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO AN ENTITY WHOLLY OWNED BY SENIOR
HOUSING PROPERTIES TRUST OR TO CERTAIN SUCCESSORS OF SENIOR HOUSING PROPERTIES
TRUST."
SECTION 5.11 Global Securities; Non-Global Securities; Common
Securities Certificate.
(a) Each Global Certificate authenticated under this Trust
Agreement shall be registered in the name of the Clearing Agency designated by
the Sponsor for such Global Certificate or a nominee thereof and delivered to
such Clearing Agency or a nominee thereof or custodian therefor, and each such
Global Certificate shall constitute a Preferred Security for all purposes of
this Trust Agreement.
(b) If a Global Certificate is to be exchanged for Definitive
Preferred Securities Certificates or canceled in whole, it shall be surrendered
by or on behalf of the Clearing Agency, its nominee or custodian to the Property
Trustee, as Securities Registrar, for exchange or cancellation as provided in
this Article 5. If any Global Certificate is to be exchanged for Definitive
Preferred Securities Certificates or cancelled in part, or if another Preferred
Security is to be exchanged in whole or in part for a beneficial interest in any
Global Certificate, in each case, as provided in Section 5.4, then either (i)
such Global Certificate shall be so surrendered for exchange or cancellation as
provided in this Article 5 or (ii) the Liquidation Amount thereof (or number of
Preferred Securities represented thereby) shall be reduced or increased by an
amount equal to the portion, thereof to be so exchanged or cancelled, or equal
to the Liquidation Amount of (or number of securities represented by) such
Definitive Preferred Security Certificates to be so exchanged for a beneficial
interest therein, as the case may be, by means of an appropriate adjustment made
on the records of the Property Trustee, as Securities Registrar, whereupon the
Property Trustee, in accordance with the Applicable Procedures, shall instruct
the Clearing Agency or its authorized representative to make a corresponding
adjustment to its records. Upon any such surrender or adjustment of a Global
Certificate, a Regular Trustee shall execute on behalf of the Trust by manual or
facsimile signature, and the Property Trustee shall, subject to Section 5.4 and
as otherwise provided in this Article 5, authenticate and deliver any Preferred
Securities issuable in exchange for such Global Certificate (or any portion
thereof) to or upon the written order of, and registered in such names as may be
directed by, the Clearing
26
Agency or its authorized representative. Upon the request of the Property
Trustee in connection with the occurrence of any of the events specified in this
paragraph, the Sponsor shall promptly make available to the Property Trustee a
reasonable supply of Preferred Securities that are not in the form of Global
Certificates. The Property Trustee shall be entitled to conclusively rely upon
any order, direction or request of the Clearing Agency or its authorized
representative which is given or made pursuant to this Article 5 if such order,
direction or request is given or made in accordance with the Applicable
Procedures.
(c) Every Preferred Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Certificate or any portion thereof, whether pursuant to this Article 5 or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Certificate, unless such Preferred Security is registered in the name of
a Person other than the Clearing Agency for such Global Certificate or a nominee
thereof.
(d) The Clearing Agency or its nominee, as registered owner of a
Global Certificate, shall be the Holder of such Global Certificate for all
purposes under this Trust Agreement and the Preferred Securities, and owners of
beneficial interests in a Global Certificate shall hold such interests pursuant
to the Applicable Procedures. Accordingly, any such Owner's beneficial interest
in a Global Certificate will be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Clearing Agency or its
nominee or its participants and such owners of beneficial interests in a Global
Certificate will not be considered the owners or Holders of such Global
Certificate for any purpose of this Trust Agreement or the Preferred Securities.
(e) A single Common Securities Certificate representing the Common
Securities shall initially be issued to the Sponsor in the form of a definitive
Common Securities Certificate.
SECTION 5.12 Notices to Clearing Agency. To the extent that a notice or
other communication to the Owners is required under this Trust Agreement, unless
and until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices and
communications specified herein to be given to Owners to the Clearing Agency,
and shall have no obligations to provide notices directly to the Owners.
SECTION 5.13 Definitive Preferred Securities Certificates.
Notwithstanding any other provision in this Trust Agreement, no Global
Certificate may be exchanged in whole or in part for Preferred Securities
registered, and no transfer of a Global Certificate in whole or in part may be
registered, in the name of any Person other than the Clearing Agency for such
Global Certificate or a nominee thereof unless (i) such Clearing Agency (A) has
notified the Trust and the Sponsor that it is unwilling or unable to continue as
Clearing Agency for such Global Certificate or (B) has ceased to be a clearing
agency registered as such under the Securities Exchange Act of 1934, as amended,
and in either case the Trust and the Sponsor thereupon fail to appoint a
successor Clearing Agency, (ii) the Trust and the Sponsor, at their option,
notify the Property Trustee in writing that it elects to cause the issuance of
the Preferred Securities in certificated form or (iii) there shall have occurred
and be continuing an Event of Default or any event which after notice or lapse
of time or both would be an Event of Default. In all cases, Definitive Preferred
Securities Certificates delivered in exchange for any Global Certificate or
27
beneficial interests therein will be registered in the names, and issued in any
approved denominations, requested by or on behalf of the Clearing Agency (in
accordance with its customary procedures).
SECTION 5.14 Rights of Securityholders. The legal title to the Trust
Property is vested exclusively in the Property Trustee (in its capacity as such)
in accordance with Section 2.9, and the Securityholders shall not have any right
or title therein other than the undivided beneficial interest in the assets of
the Trust conferred by their Trust Securities and they shall have no right to
call for any partition or division of property, profits or rights of the Trust
except as described below. The Trust Securities shall be personal property
giving only the rights specifically set forth therein and in this Trust
Agreement. The Trust Securities shall have no preemptive or similar rights and,
when issued and delivered to Securityholders against payment of the purchase
price therefor, will be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under Title 2 of the Maryland General Corporation Law, provided, however, the
Holders of Trust Securities may be obligated, pursuant to the terms of this
Trust Agreement, to (i) provide indemnity and/or security in connection with and
pay taxes or governmental charges arising from transfers of Trust Securities and
(ii) provide security and indemnity in connection with the requests of or
directions to the Property Trustee to exercise its rights and powers under the
Trust Agreement.
ARTICLE 6
ACT OF SECURITYHOLDERS; MEETINGS; VOTING
SECTION 6.1 Limitations on Voting Rights.
(a) Except as provided in this Section, in Section 8.2 and 10.2
and in the Indenture and as otherwise required by law, no Holder of Preferred
Securities shall have any right to vote or in any manner otherwise control the
administration, operation and management of the Trust or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Trust Securities Certificates, be construed so as to constitute the
Securityholders from time to time as partners or members of an association.
(b) Subject to Section 8.2 hereof, if an Event of Default with
respect to the Preferred Securities has occurred and been subsequently cured,
waived or otherwise eliminated, the provisions of Section 6.1(b)(ii) hereof
shall apply. During (x) the period commencing on the date of the occurrence of
an Event of Default with respect to the Preferred Securities and ending on the
date when such Event of Default is cured, waived or otherwise eliminated, or (y)
any period not described in either the preceding sentence or the preceding
clause (x), the provisions of Section 6.1(b)(i) shall apply.
(i) The Holders of a majority in aggregate Liquidation Amount
of the Preferred Securities will have the right to direct the time,
method and place of conducting any proceeding for any remedy available
to the Property Trustee or to exercise any trust or power conferred
upon the Property Trustee under this Trust Agreement, including the
right to direct the Property Trustee to exercise the remedies available
to it as a holder of
28
the Debt Securities but excluding the right to direct the Property
Trustee to consent to an amendment, modification or termination of the
Indenture (which shall be as provided below). So long as any Debt
Securities are held by the Property Trustee, the Trustees shall not (A)
direct the time, method and place of conducting any proceeding for any
remedy available to the Indenture Trustee, or executing any trust or
power conferred on the Indenture Trustee with respect to such Debt
Securities, (B) waive any past default which is waivable under Section
[.......] of the Indenture, (C) exercise any right to rescind or annul
a declaration that the principal of all the Debt Securities shall be
due and payable or (D) consent to any amendment, modification or
termination of the Indenture or the Debt Securities, where such consent
shall be required, without, in each case, obtaining the prior approval
of the Holders of a majority in aggregate Liquidation Amount of all
Outstanding Preferred Securities (except in the case of clause (D),
which consent, in the event that no Event of Default shall occur and be
continuing, shall be of the Holders of a majority in aggregate
Liquidation Amount of all Trust Securities, voting together as a single
class); provided, however, that where a consent under the Indenture
would require the consent of each holder of Debt Securities affected
thereby, no such consent shall be given by the Property Trustee without
the prior written consent of each Holder of Preferred Securities. The
Trustees shall not revoke any action previously authorized or approved
by a vote of the Holders of the Preferred Securities, except by a
subsequent vote of the Holders of the Preferred Securities. The
Property Trustee shall notify all Holders of record of the Preferred
Securities of any notice of default received from the Indenture Trustee
with respect to the Debt Securities. In addition to obtaining the
foregoing approvals of the Holders of the Preferred Securities, prior
to taking any of the foregoing actions, the Trustees shall, at the
expense of the Sponsor, obtain an Opinion of Counsel experienced in
such matters to the effect that the Trust will not be classified as an
association taxable as a corporation or partnership for United States
federal income tax purposes on account of such action.
(ii) Subject to Section 8.2 of this Trust Agreement and only
after the Event of Default with respect to the Preferred Securities has
been cured, waived, or otherwise eliminated, the Holders of a majority
in aggregate Liquidation Amount of the Common Securities will have the
right to direct the time, method and place of conducting any proceeding
for any remedy available to the Property Trustee or to exercise any
trust or power conferred upon the Property Trustee under this Trust
Agreement, including the right to direct the Property Trustee to
exercise the remedies available to it as a holder of the Debt
Securities but excluding the right to direct the Property Trustee to
consent to an amendment, modification or termination of the Indenture
(which shall be as provided below). So long as any Debt Securities are
held by the Property Trustee, the Trustees shall not (A) direct the
time, method and place of conducting any proceeding for any remedy
available to the Indenture Trustee, or executing any trust or power
conferred on the Indenture Trustee with respect to such Debt
Securities, (B) waive any past default which is waivable under Section
5.13 of the Indenture, (C) exercise any right to rescind or annul a
declaration that the principal of all the Debt Securities shall be due
and payable or (D) consent to any amendment, modification or
termination of the Indenture or the Debt Securities, where such consent
shall be required, without, in each case, obtaining the prior approval
of the Holders of a majority in aggregate Liquidation Amount of all
Common Securities (except in the case of clause (D), which consent, in
the event that no
29
Event of Default shall occur and be continuing, shall be of the Holders
of a majority in aggregate Liquidation Amount of all Trust Securities,
voting together as a single class); provided, however, that where a
consent under the Indenture would require the consent of each holder of
Debt Securities affected thereby, no such consent shall be given by the
Property Trustee without the prior written consent of each Holder of
Common Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of the Common
Securities, except by a subsequent vote of the Holders of the Common
Securities. The Property Trustee shall notify all Holders of record of
the Common Securities of any notice of default received from the
Indenture Trustee with respect to the Debt Securities. In addition to
obtaining the foregoing approvals of the Holders of the Common
Securities, prior to taking any of the foregoing actions, the Trustees
shall, at the expense of the Sponsor, obtain an Opinion of Counsel
experienced in such matters to the effect that the Trust will not be
classified as an association taxable as a corporation or partnership
for United States federal income tax purposes on account of such
action.
(iii) The provisions of this Section 6.1(b) and Section 6.1(a)
of this Trust Agreement shall be in lieu of Section 316(a)(1)(A) of the
Trust Indenture Act, and such Section 316(a)(1)(A) is hereby expressly
excluded from this Trust Agreement and the Preferred Securities, as
permitted by the Trust Indenture Act.
(c) If any proposed amendment to this Trust Agreement provides
for, or the Trustees otherwise propose to effect, the dissolution, winding-up or
termination of the Trust, other than pursuant to the terms of this Trust
Agreement, then the Holders of Outstanding Preferred Securities as a class will
be entitled to vote on such amendment or proposal and such amendment or proposal
shall not be effective except with the approval of the Holders of a majority in
aggregate Liquidation Amount of the Outstanding Preferred Securities.
SECTION 6.2 Notice of Meetings. Notice of all meetings of the Holders
of the Preferred Securities, stating the time, place and purpose of the meeting,
shall be given by the Property Trustee pursuant to Section 10.8 to each
Preferred Securityholder of record, at its registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in the
notice of the meeting. Any adjourned meeting may be held as adjourned without
further notice.
SECTION 6.3 Meetings of Preferred Securityholders. No annual meeting of
Securityholders is required to be held. The Regular Trustees, however, shall
call a meeting of Securityholders to vote on any matter upon the written request
of the Preferred Securityholders of record of 25% of the Preferred Securities
(based upon their Liquidation Amount), and the Regular Trustees or the Property
Trustee may, at any time in their discretion, call a meeting of the Holders of
Preferred Securities to vote on any matters as to which such Holders are
entitled to vote.
Holders of record of a majority of the Preferred Securities (based upon
their Liquidation Amount), present in person or by proxy, shall constitute a
quorum at any meeting of Securityholders.
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If a quorum is present at a meeting, an affirmative vote by the Holders
of record of Preferred Securities present, in person or by proxy, holding a
majority of the Preferred Securities (based upon their Liquidation Amount) held
by Holders of record of Preferred Securities present, either in person or by
proxy, at such meeting shall constitute the action of the Securityholders,
unless this Trust Agreement requires a greater number of affirmative votes.
SECTION 6.4 Voting Rights. Securityholders shall be entitled to one
vote for each $__ of Liquidation Amount represented by their Trust Securities in
respect of any matter as to which such Securityholders are entitled to vote.
Notwithstanding that Holders of Preferred Securities are entitled to vote or
consent under any of the circumstances described above, any of the Preferred
Securities that are owned at such time by the Sponsor, the Trustees or any
affiliate of any Trustee shall, for purposes of such vote or consent, be treated
as if such Preferred Securities were not outstanding.
SECTION 6.5 Proxies, Etc. At any meeting of Securityholders, any
Securityholders entitled to vote thereat may vote by proxy, provided that no
proxy shall be voted at any meeting unless it shall have been placed on file
with the Regular Trustees, or with such other officer or agent of the Trust as
the Regular Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons, any
one of them may vote at any meeting in person or represented by proxy in respect
of such Trust Securities, but if more than one of them shall be present at such
meeting in person or by proxy, and such joint owners or their proxies so present
disagree as to any vote to be cast, such vote shall not be received in respect
of such Trust Securities. A proxy purporting to be executed by or on behalf of a
Securityholder shall be deemed valid unless challenged at or prior to its
exercise, and the burden of proving invalidity shall rest on the challenger. No
proxy shall be valid more than three years after its date of execution.
SECTION 6.6 Securityholder Action by Written Consent. Any action which
may be taken by Securityholders at a meeting may be taken without a meeting if
Securityholders holding a majority of all Outstanding Trust Securities (based
upon their Liquidation Amount) entitled to vote in respect of such action (or
such larger proportion thereof as shall be required by any express provision of
this Trust Agreement) shall consent to the action in writing.
SECTION 6.7 Record Date for Voting and Other Purposes. For the purposes
of determining the Securityholders who are entitled to notice of and to vote at
any meeting or by written consent, or to participate in any Distribution on the
Trust Securities in respect of which a record date is not otherwise provided for
in this Trust Agreement, or for the purpose of any other action, the Regular
Trustees may from time to time fix a date, not more than 90 days prior to the
date of any meeting of Securityholders or the payment of Distributions or other
action, as the case may be, as a record date for the determination of the
identity of the Securityholders of record for such purposes.
SECTION 6.8 Acts of Securityholders. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Trust Agreement to be given, made or taken by Securityholders
or Owners may be embodied in and evidenced by one
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or more instruments of substantially similar tenor signed by such
Securityholders or Owners in person or by an agent duly appointed in writing;
and, except as otherwise expressly provided herein, such action shall become
effective when such instrument or instruments are delivered to a Regular
Trustee. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Securityholders or Owners signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Trust Agreement and (subject to Section
8.1) conclusive in favor of the Trustees, if made in the manner provided in this
Section.
The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which any Trustee receiving the same deems sufficient.
The ownership of Preferred Securities shall be proved by the Securities
Register.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.
Without limiting the foregoing, a Securityholder entitled hereunder to
take any action hereunder with regard to any particular Trust Security may do so
with regard to all or any part of the Liquidation Amount of such Trust Security
or by one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such Liquidation Amount.
If any dispute shall arise between the Securityholders and the Regular
Trustees or among such Securityholders or Regular Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or Trustee under
this Article 6, then the determination of such matter by the Property Trustee
shall be conclusive with respect to such matter.
Upon the occurrence and continuation of an Event of Default, the
Holders of Preferred Securities shall rely on the enforcement by the Property
Trustee of its rights as holder of the Debt Securities against the Parent. If
the Property Trustee fails to enforce its rights as holder of the Debt
Securities after a request therefor by a Holder of Preferred Securities, such
holder may proceed to enforce such rights directly against the Sponsor.
Notwithstanding the foregoing, if an Event of Default has occurred and is
continuing and such event is attributable to the failure of the Parent to pay
interest or principal on the Debt Securities on the date such interest or
principal is
32
otherwise payable (or in the case of redemption, on the Redemption Date), then a
Holder of Preferred Securities shall have the right to institute a proceeding
directly against the Parent, for enforcement of payment to such holder of the
principal amount of or interest on Debt Securities having a principal amount
equal to the aggregate Liquidation Amount of the Preferred Securities of such
Holder after the respective due date specified in the Debt Securities (a "Direct
Action"). In connection with any such Direct Action, the rights of the Parent
will be subrogated to the rights of any Holder of the Preferred Securities to
the extent of any payment made by the Parent to such Holder of Preferred
Securities as a result of such Direct Action.
SECTION 6.9 Inspection of Records. Upon reasonable demand and notice to
the Regular Trustees and the Property Trustee, any Securityholder shall have the
right, at its expense, to inspect during usual business hours the following
records of the Trust, solely for purposes reasonably related to such
Securityholder's interest as a holder of Trust Securities:
(a) a copy of this Trust Agreement and the Certificate of Trust of the
Trust and all amendments thereto, together with copies of any written powers of
attorney under which this Trust Agreement, such Certificate of Trust or any such
amendment have been executed;
(b) if and to the extent disclosure thereof is the time required under
the provisions of the Maryland Business Trust Act, a current list of the name
and last known business or mailing address of each Securityholder; and
(c) the separate annual financial statements of the Trust, if such
financial statements are prepared.
Any such demand and notice shall be in writing and shall state the purpose of
the demand.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
SECTION 7.1 Representations and Warranties of the Property Trustee. The
Property Trustee hereby represents and warrants for the benefit of the Sponsor
and the Securityholders that:
(a) the Property Trustee is a banking corporation duly organized,
validly existing and in good standing under the laws of the State of New York;
(b) the Property Trustee has full corporate power, authority and
legal right to execute, deliver and perform its obligations under this Trust
Agreement and has taken all necessary action to authorize the execution,
delivery and performance by it of this Trust Agreement;
(c) this Trust Agreement has been duly authorized, executed and
delivered by the Property Trustee and constitutes the valid and legally binding
agreement of the Property Trustee enforceable against it in accordance with its
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and
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(d) the execution, delivery and performance by the Property
Trustee of this Trust Agreement have been duly authorized by all necessary
corporate or other action on the part of the Property Trustee and do not require
any approval of stockholders of the Property Trustee and such execution,
delivery and performance will not violate the Property Trustee's charter or
by-laws or (b) violate any law, governmental rule or regulation of the United
States or the State of New York, as the case may be, governing the banking,
corporate, or trust powers of the Property Trustee, or any order, judgment or
decree applicable to the Property Trustee.
SECTION 7.2 Representations and Warranties of Sponsor. The Sponsor
hereby represents and warrants for the benefit of the Property Trustee and the
Securityholders that:
(a) the Trust Securities Certificates issued on the Closing Date
on behalf of the Trust have been duly authorized and will have been duly and
validly executed, issued and delivered by the Trustees pursuant to the terms and
provisions of, and in accordance with the requirements of, this Trust Agreement
and the Securityholders will be, as of such date, entitled to the benefits of
this Trust Agreement; and
(b) there are no taxes, fees or other governmental charges payable
by the Trust (or the Trustees on behalf of the Trust) under the laws of the
State of Maryland or any political subdivision thereof in connection with the
execution, delivery and performance by the Property Trustee of this Trust
Agreement.
ARTICLE 8
THE TRUSTEES
SECTION 8.1 Certain Duties and Responsibilities.
(a) The duties and responsibilities of the Trustees shall be as
provided by this Trust Agreement and, in the case of the Property Trustee, by
the Trust Indenture Act. The Property Trustee, before the occurrence of any
Event of Default and after the curing or waiving of all Events of Default that
may have occurred, shall undertake to perform only such duties and obligations
as are specifically set forth in this Trust Agreement and the Trust Indenture
Act and no implied covenants shall be read into this Trust Agreement against the
Property Trustee. In case an Event of Default has occurred (that has not been
cured or waived pursuant to Section 8.2) of which a Responsible Officer of the
Property Trustee has actual knowledge, the Property Trustee shall exercise such
rights and powers vested in it by this Trust Agreement and the Trust Indenture
Act, and use the same degree of care and skill in its exercise, as a prudent
individual would exercise or use under the circumstances in the conduct of his
or her own affairs.
Notwithstanding the foregoing, no provision of this Trust Agreement
shall require the Trustees to expend or risk their own funds or otherwise incur
any financial liability in the performance of any of their duties hereunder, or
in the exercise of any of their rights or powers, if they shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Trust Agreement relating to the
conduct or affecting the liability of or affording protection to the Trustees
shall be subject to the provisions of this Section. Nothing in this Trust
Agreement shall be construed to release the Regular
34
Trustees from liability for their own grossly negligent action, their own
grossly negligent failure to act, or their own willful misconduct.
To the extent that, at law or in equity, a Regular Trustee has duties
(including fiduciary duties) and liabilities relating thereto to the Trust or to
the Securityholders, such Regular Trustee shall not be liable to the Trust or to
any Securityholder to the maximum extent that Maryland law in effect from time
to time permits limitation of the liability of trustees and officers of a
business trust. The provisions of this Trust Agreement, to the extent that they
restrict the duties and liabilities of the Regular Trustees otherwise existing
at law or in equity, are agreed by the Sponsor and the Securityholders to
replace such other duties and liabilities of the Regular Trustees.
(b) All payments made by the Property Trustee or a Paying Agent in
respect of the Trust Securities shall be made only from the revenue and proceeds
from the Trust Property and only to the extent that there shall be sufficient
revenue or proceeds from the Trust Property to enable the Property Trustee or a
Paying Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent legally
available for distribution to it as herein provided and that the Trustees are
not personally liable to it for any amount distributable in respect of any Trust
Security or for any other liability in respect of any Trust Security. This
Section 8.1(b) does not limit the liability of the Trustees expressly set forth
elsewhere in this Trust Agreement or, in the case of the Property Trustee, in
the Trust Indenture Act.
(c) No provision of this Trust Agreement shall be construed to
relieve the Property Trustee from liability for its own negligent action, its
own negligent failure to act, or its own willful misconduct, except that:
(i) the Property Trustee shall not be liable for any error of
judgment made in good faith by an authorized officer of the Property
Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Property Trustee shall not be liable with respect to
any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in aggregate
Liquidation Amount of the Trust Securities relating to the time, method
and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the
Property Trustee under this Trust Agreement;
(iii) the Property Trustee's sole duty with respect to the
custody, safekeeping and physical preservation of the Debt Securities
and the Payment Account shall be to deal with such property as
fiduciary assets, subject to the protections and limitations on
liability afforded to the Property Trustee under this Trust Agreement
and the Trust Indenture Act;
(iv) the Property Trustee shall not be liable for any interest
on any money received by it except as it may otherwise agree, in
writing, with the Sponsor and money
35
held by the Property Trustee need not be segregated from other funds
held by it except in relation to the Payment Account maintained by the
Property Trustee pursuant to Section 3.1 and except to the extent
otherwise required by law;
(v) the Property Trustee shall not be responsible for
monitoring the compliance by the Regular Trustees or the Sponsor with
their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of the Regular
Trustees or the Sponsor;
(vi) the Property Trustee shall have no duty or liability with
respect to the value, genuineness, existence or sufficiency of the Debt
Securities or the payment of any taxes or assessments thereon or in
connection therewith;
(vii) the duties and obligations of the Property Trustee shall
be determined solely by the express provisions of this Trust Agreement
and in the Preferred Securities and the Common Securities and the
Property Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Trust
Agreement and in the Preferred Securities and the Common Securities,
and no implied covenants or obligations shall be read into this Trust
Agreement against the Property Trustee; and
(viii) no provision of this Trust Agreement shall require the
Property Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that the repayment of such funds or
liability is not reasonably assured to it under the terms of this Trust
Agreement or indemnity reasonably satisfactory to the Property Trustee
against such risk or liability is not reasonably assured to it.
SECTION 8.2 Notice of Defaults.
(a) Within ten days after the occurrence of any Event of Default
actually known to a Responsible Officer of the Property Trustee, the Property
Trustee shall transmit, in the manner and to the extent provided in Section
10.8, notice of such Event of Default to the Holders of Preferred Securities,
the Regular Trustees and the Sponsor, unless such Event of Default shall have
been cured or waived, provided that, except for a default in the payment of
principal of (or premium, if any) or interest on any of the Debt Securities, the
Property Trustee shall be fully protected in withholding such notice if and so
long as the Board of Trustees, the executive committee, or a trust committee of
directors and/or Responsible Officers of the Property Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of the Preferred Securities.
(b) Within ten days after the receipt of notice of the Parent's
exercise of its right to extend the interest payment period for the Debt
Securities pursuant to the Indenture, the Property Trustee shall transmit, in
the manner and to the extent provided in Section 10.8, notice of such exercise
to the Securityholders, unless such exercise shall have been revoked.
36
(c) The Holders of a majority in Liquidation Amount of Preferred
Securities may, by vote, on behalf of the Holders of all of the Preferred
Securities, waive any past Event of Default in respect of the Preferred
Securities and its consequences, provided that, if the underlying Indenture
Event of Default:
(i) is not waivable under the Indenture, the Event of Default
under this Trust Agreement shall also not be waivable; or
(ii) requires the consent or vote of greater than a majority
in principal amount of the holders of the Debt Securities, including
the consent or vote of all such holders, (a "Super Majority") to be
waived under the Indenture, the Event of Default under this Trust
Agreement may only be waived by the vote of the Holders of the same
proportion in Liquidation Amount of the Preferred Securities that the
relevant Super Majority represents of the aggregate principal amount of
the Debt Securities outstanding.
The provisions of Section 6.1(b) and this Section 8.2(c) shall be in
lieu of Section 316(a)(1)(B) of the Trust Indenture Act and such Section
316(a)(1)(B) of the Trust Indenture Act is hereby expressly excluded from this
Trust Agreement and the Preferred Securities, as permitted by the Trust
Indenture Act. Upon such waiver, any such default shall cease to exist, and any
Event of Default with respect to the Preferred Securities arising therefrom
shall be deemed to have been cured, for every purpose of this Trust Agreement,
but no such waiver shall extend to any subsequent or other default or an Event
of Default with respect to the Preferred Securities or impair any right
consequent thereon. Any waiver by the Holders of the Preferred Securities of an
Event of Default with respect to the Preferred Securities shall also be deemed
to constitute a waiver by the Holders of the Common Securities of any such Event
of Default with respect to the Common Securities for all purposes of this Trust
Agreement without any further act, vote, or consent of the Holders of the Common
Securities.
(d) The Holders of a majority in Liquidation Amount of the Common
Securities may, by vote, on behalf of the Holders of all of the Common
Securities, waive any past Event of Default with respect to the Common
Securities and its consequences, provided that, if the underlying Indenture
Event of Default:
(i) is not waivable under the Indenture, except where the
Holders of the Common Securities are deemed to have waived such Event
of Default under the Trust Agreement as provided below in this Section
8.2(d), the Event of Default under this Trust Agreement shall also not
be waivable; or
(ii) requires the consent or vote of a Super Majority to be
waived, except where the Holders of the Common Securities are deemed to
have waived such Event of Default under this Trust Agreement as
provided below in this Section 8.2(d), the Event of Default under this
Trust Agreement may only be waived by the vote of the Holders of the
same proportion in Liquidation Amount of the Common Securities that the
relevant Super Majority represents of the aggregate principal amount of
the Debt Securities outstanding; provided further, that each Holder of
Common Securities will be deemed to have waived any such Event of
Default and all Events of Default with respect to the Common Securities
and its consequences until all Events of Default with respect to the
Preferred
37
Securities have been cured, waived or otherwise eliminated, and until
such Events of Default have been so cured, waived or otherwise
eliminated, the Property Trustee will be deemed to be acting solely on
behalf of the Holders of the Preferred Securities and only the Holders
of the Preferred Securities will have the right to direct the Property
Trustee in accordance with the terms of the Securities. The provisions
of Section 6.1(b) and this Section 8.2(d) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B)
of the Trust Indenture Act is hereby expressly excluded from this Trust
Agreement and the Preferred Securities, as permitted by the Trust
Indenture Act. Subject to the foregoing provisions of this Section
8.2(d), upon such waiver, any such default shall cease to exist and any
Event of Default with respect to the Common Securities arising
therefrom shall be deemed to have been cured for every purpose of this
Trust Agreement, but no such waiver shall extend to any subsequent or
other default or Event of Default with respect to the Common Securities
or impair any right consequent thereon.
(e) A waiver of a Indenture Event of Default by the Property
Trustee at the direction of the Holders of the Preferred Securities, constitutes
a waiver of the corresponding Event of Default under this Trust Agreement. The
foregoing provisions of this Section 8.2(e) shall be in lieu of Section
316(a)(1)(B) of the Trust Indenture Act and such Section 316(a)(1)(B) of the
Trust Indenture Act is hereby expressly excluded from this Trust Agreement and
the Preferred Securities, as permitted by the Trust Indenture Act.
SECTION 8.3 Certain Rights of Property Trustee. Subject to the
provisions of Section 8.1:
(a) the Property Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting in good faith upon any resolution,
Opinion of Counsel, certificate, written representation of a Holder or
transferee such as of a certificate presented for transfer, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond, debenture, note, other
evidence of indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) if no Event of Default has occurred and is continuing and, (i)
in performing its duties under this Trust Agreement the Property Trustee is
required to decide between alternative courses of action or (ii) in construing
any of the provisions in this Trust Agreement the Property Trustee finds the
same ambiguous or inconsistent with any other provisions contained herein or
(iii) the Property Trustee is unsure of the application of any provision of this
Trust Agreement, then, except as to any matter as to which the Holders of
Preferred Securities are entitled to vote under the terms of this Trust
Agreement, the Property Trustee shall deliver a notice to the Sponsor requesting
written instructions of the Sponsor as to the course of action to be taken and
the Property Trustee shall take such action, or refrain from taking such action,
as the Property Trustee shall be instructed in writing to take, or to refrain
from taking, by the Sponsor; provided, however, that if the Property Trustee
does not receive such instructions of the Sponsor within ten Business Days after
it has delivered such notice, or such reasonably shorter period of time set
forth in such notice (which to the extent practicable shall not be less than two
Business Days), it may, but shall be under no duty to, take or refrain
38
from taking such action not inconsistent with this Trust Agreement as it shall
deem advisable and in the best interests of the Securityholders, in which event
the Property Trustee shall have no liability except for its own bad faith,
negligence or willful misconduct;
(c) any direction or act of the Sponsor or the Regular Trustees
contemplated by this Trust Agreement shall be sufficiently evidenced by an
Officers' Certificate;
(d) whenever in the administration of this Trust Agreement, the
Property Trustee shall deem it desirable that a matter be established before
undertaking, suffering or omitting any action hereunder, the Property Trustee
(unless other evidence is herein specifically prescribed) may, in the absence of
bad faith on its part, request and conclusively rely upon an Officers'
Certificate and an Opinion of Counsel which, upon receipt of such request, shall
be promptly delivered by the Sponsor or the Regular Trustees;
(e) the Property Trustee shall have no duty to accomplish any
recording, filing or registration of any instrument (including any financing or
continuation statement or any filing under tax or securities laws) or any
rerecording, refiling or reregistration thereof;
(f) the Property Trustee may consult with counsel at the Sponsor's
expense (which counsel may be counsel to the Sponsor or any of its Affiliates,
and may include any of its employees) and the advice of such counsel or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon and in accordance with such advice; and the Property
Trustee shall have the right at any time to seek instructions concerning the
administration of this Trust Agreement from any court of competent jurisdiction;
(g) the Property Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Trust Agreement at the request
or direction of any of the Securityholders pursuant to this Trust Agreement,
unless such Securityholders shall have offered to the Property Trustee
reasonable security or indemnity satisfactory to it against the costs, expenses
(including attorneys' fees and expenses and the expenses of the Property
Trustee's agents, custodians or nominees) and liabilities which might be
incurred by it in compliance with such request or direction;
(h) the Property Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolutions, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond, debenture, note or other evidence of indebtedness or other paper
or document, but the Property Trustee may make such further inquiry or
investigation into such facts or custodian or nominee matters as it may see fit;
(i) the Property Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through its
agents, custodians or nominees, attorneys or an Affiliate, provided that the
Property Trustee shall not be responsible for the negligence or recklessness on
the part of any agent, attorney, custodian or nominee appointed by it with due
care hereunder;
39
(j) whenever in the administration of this Trust Agreement the
Property Trustee shall deem it desirable to receive instructions with respect to
enforcing any remedy or right or taking any other action hereunder, the Property
Trustee (i) may request instructions from the Holders of the Trust Securities,
which instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or right or
taking such other action until such instructions are received, and (iii) shall
be fully protected in conclusively relying on or acting in accordance with such
instructions;
(k) except as otherwise expressly provided by this Trust
Agreement, the Property Trustee shall not be under any obligation to take any
action that is discretionary under the provisions of this Trust Agreement;
(l) to the maximum extent that Maryland law in effect from time to
time permits the limitation of the liability of trustees and officers of a
business trust, the Property Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in connection with this Trust Agreement;
and
(m) in the event that the Property Trustee is also acting as a
Paying Agent, Exchange Agent, [Conversion Agent] and/or Securities Registrar
hereunder, the rights and protections afforded to the Property Trustee pursuant
to this Article 8 shall also be afforded to such Paying Agent, Exchange Agent,
[Conversion Agent] and/or Securities Registrar.
No provision of this Trust Agreement shall be deemed to impose any duty
or obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any jurisdiction
in which it shall be illegal, or in which the Property Trustee shall be
unqualified or incompetent in accordance with applicable law, to perform any
such act or acts, or to exercise any such right, power, duty or obligation. No
permissive power or authority available to the Property Trustee shall be
construed to be a duty.
SECTION 8.4 Not Responsible for Recitals or Issuance of Securities. The
recitals contained herein and in the Trust Securities Certificates shall not be
taken as the statements of the Trustees, and the Trustees do not assume any
responsibility for their correctness. The Trustees shall not be accountable for
the use or application by the Sponsor of the proceeds of the Debt Securities.
SECTION 8.5 May Hold Securities. Except as provided in the definition
of the term "Outstanding" in Article 1, any Trustee or any other agent of any
Trustee or the Trust, in its individual or any other capacity, may become the
owner or pledgee of Trust Securities and, subject to Section 8.8 and 8.12, may
otherwise deal with the Trust with the same rights it would have if it were not
a Trustee or such other agent.
40
SECTION 8.6 Compensation; Indemnity; Fees.
The Sponsor agrees:
(a) to pay the Trustees from time to time reasonable compensation
for all services rendered by them hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(b) except as otherwise expressly provided herein and subject to
the applicable limitations set forth in subsection (c) or (d) below, to
reimburse each Trustee, or advance expenses to each Trustee, upon request for
all reasonable expenses, disbursements and advances incurred or made by such
Trustee in accordance with any provision of this Trust Agreement (including the
reasonable compensation and the expenses and disbursements of its agents and
counsel);
(c) to the fullest extent permitted by applicable law, to
indemnify and hold harmless (i) each Regular Trustee, (ii) any Affiliate of any
Regular Trustee, (iii) any officer, director, shareholder, employee,
representative or agent of any Regular Trustee, and (iv) any employee or agent
of the Trust or its Affiliates (referred to herein as an "Sponsor Indemnified
Person") from and against any loss, damage, liability, tax, penalty, expense or
claim of any kind or nature whatsoever incurred by such Sponsor Indemnified
Person by reason of the creation, operation, dissolution or termination of the
Trust or in connection with the administration of the Trust or any act or
omission performed or omitted by such Sponsor Indemnified Person on behalf of
the Trust, except that no Sponsor Indemnified Person shall be entitled to be
indemnified in respect of any loss, damage or claim incurred by such Sponsor
Indemnified Person if it has been established that such expense, disbursement or
advance is attributable to such Sponsor Indemnified Person's own grossly
negligent action, grossly negligent failure to act, or willful misconduct;
(d) to the fullest extent permitted by applicable law, to
indemnify and hold harmless the Property Trustee for, and to hold it harmless
against, any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder; and
(e) no Trustee may claim any lien or charge on any Trust Property
as a result of any amount due pursuant to this Section 8.6.
SECTION 8.7 Property Trustee Required; Eligibility of Trustees.
(a) There shall at all times be a Property Trustee hereunder with
respect to the Trust Securities. The Property Trustee shall be a Person that is
eligible pursuant to the Trust Indenture Act to act as such and has a combined
capital and surplus of at least $50,000,000. If any such Person publishes
reports of condition at least annually, pursuant to law or to the requirements
of its supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Person shall be deemed to be
its combined capital and
41
surplus as set forth in its most recent report of condition so published. If at
any time the Property Trustee with respect to the Trust Securities shall cease
to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
(b) There shall at all times be one or more Regular Trustees
hereunder with respect to the Trust Securities. Each Regular Trustee shall be
either a natural person who is at least 21 years of age or a legal entity that
shall act through one or more persons authorized to bind that entity.
SECTION 8.8 Conflicting Interests. If the Property Trustee has or shall acquire
a conflicting interest within the meaning of the Trust Indenture Act, the
Property Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Trust Agreement.
SECTION 8.9 Resignation and Removal; Appointment of Successor.
(a) Subject to Sections 8.9(b), Trustees (the "Relevant Trustee")
may be appointed or removed without cause at any time:
(i) until the issuance of any Trust Securities, by written
instrument executed by the Sponsor; and
(ii) after the issuance of any Securities, by vote of the
Holders of a majority in Liquidation Amount of the Common Securities
voting as a class.
(b) The Trustee that acts as Property Trustee shall not be removed
in accordance with Section 8.9(a) until a successor possessing the
qualifications to act as a Property Trustee under Section 8.7 (a "Successor
Property Trustee") has been appointed and has accepted such appointment by
instrument executed by such Successor Property Trustee and delivered to the
Trust, the Sponsor and the removed Property Trustee.
(c) A Trustee appointed to office shall hold office until his, her
or its successor shall have been appointed or until his, her or its death,
removal, resignation, dissolution or liquidation. Any Trustee may resign from
office (without need for prior or subsequent accounting) by an instrument in
writing signed by the Trustee and delivered to the Sponsor and the Trust, which
resignation shall take effect upon such delivery or upon such later date as is
specified therein; provided, however, that:
(i) No such resignation of the Trustee that acts as the
Property Trustee shall be effective:
(A) until a Successor Property Trustee has been
appointed and has accepted such appointment by instrument
executed by such Successor Property Trustee and delivered to
the Trust, the Sponsor and the resigning Property Trustee; or
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(B) until the assets of the Trust have been
completely liquidated and the proceeds thereof distributed to
the Holders of the Securities;
(ii) no appointment of a successor Property Trustee shall be
effective until all fees, charges, and expenses of the retiring
Property Trustee have been paid.
(d) The Holders of the Common Securities shall use their best
efforts to promptly appoint a Successor Property Trustee if the Property Trustee
delivers an instrument of resignation in accordance with Section 8.9(c).
(e) If no Successor Property Trustee shall have been appointed and
accepted appointment as provided in this Section 8.9 within 60 days after
delivery pursuant to this Section 8.9 of an instrument of resignation or
removal, the Property Trustee resigning or being removed may petition any court
of competent jurisdiction for appointment of a Successor Property Trustee. Such
court may thereupon, after prescribing such notice, if any, as it may deem
proper and prescribe, appoint a Successor Property Trustee.
(f) No Property Trustee shall be liable for the acts or omissions
to act of any Successor Property Trustee.
(g) The Property Trustee shall give notice of each resignation and
each removal of a Trustee and each appointment of a successor Trustee to all
Securityholders in the manner provided in Section 10.8 and shall give notice to
the Sponsor. Each notice shall include the name of the successor Relevant
Trustee and the address of its Corporate Trust Office if it is the Property
Trustee.
(h) Notwithstanding the foregoing or any other provision of this
Trust Agreement, in the event any Regular Trustee who is a natural person dies
or becomes, in the opinion of the Sponsor, incompetent or incapacitated, the
vacancy created by such death, incompetence or incapacity may be filled by (a)
the unanimous act of the remaining Regular Trustees if there are at least two of
them or (b) otherwise by the Sponsor (with the successor in each case being a
Person who satisfies the eligibility requirement for Regular Trustees set forth
in Section 8.7).
The indemnity provided to a Trustee under Section 8.6 shall survive any
Trustee's resignation or removal or termination of this Trust Agreement.
SECTION 8.10 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Relevant Trustee, the retiring Relevant
Trustee and each successor Relevant Trustee shall execute and deliver an
amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which (a) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Relevant
Trustee all the rights, powers, trusts and duties of the retiring Relevant
Trustee and (b) shall add to or change any of the provisions of this Trust
Agreement as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Relevant Trustee, it being understood
that nothing herein or in such amendment shall constitute such Relevant Trustees
as co-trustees and upon the execution and delivery of such amendment the
resignation or removal
43
of the retiring Relevant Trustee shall become effective to the extent provided
therein and each such successor Relevant Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Relevant Trustee; but, on request of the Trust or any
successor Relevant Trustee, such retiring Relevant Trustee shall duly assign,
transfer and deliver to such successor Relevant Trustee all Trust Property, all
proceeds thereof and money held by such retiring Relevant Trustee hereunder.
Upon request of any such successor Relevant Trustee, the Trust shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Relevant Trustee all such rights, powers and trusts
referred to in the first or second preceding paragraph, as the case may be.
No successor Relevant Trustee shall accept its appointment unless at
the time of such acceptance such successor Relevant Trustee shall be qualified
and eligible under this Article.
SECTION 8.11 Merger, Conversion, Consolidation or Succession to
Business. Any Person into which the Property Trustee or any Regular Trustee that
is not a natural person may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which such Relevant Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of such Relevant Trustee, shall be the successor of such Relevant Trustee
hereunder, provided such Person shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act on
the part of any of the parties hereto.
SECTION 8.12 Preferential Collection of Claims Against Sponsor or
Trust. If and when the Property Trustee shall be or become a creditor of the
Sponsor or the Trust (or any other obligor upon the Debt Securities or the Trust
Securities), the Property Trustee shall be subject to and shall take all actions
necessary in order to comply with the provisions of the Trust Indenture Act
regarding the collection of claims against the Sponsor or Trust (or any such
other obligor).
SECTION 8.13 Reports by Property Trustee. Within 60 days after May 15
of each year, commencing with the first May 15, after the first issuance of
Preferred Securities, the Property Trustee shall provide to the Holders of the
Preferred Securities such reports as are required by Section 313 of the Trust
Indenture Act, if any, in the form and in the manner provided by Section 313 of
the Trust Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.
SECTION 8.14 Reports to the Property Trustee. The Sponsor and the
Regular Trustees on behalf of the Trust shall provide to the Property Trustee
such documents, reports and information as are required by Section 314 of the
Trust Indenture Act (if any) and the compliance certificate required by Section
314(a) of the Trust Indenture Act in the form, in the manner and at the times
required by Section 314 of the Trust Indenture Act.
SECTION 8.15 Evidence of Compliance with Conditions Precedent. Each of
the Sponsor and the Regular Trustees on behalf of the Trust shall provide to the
Property Trustee such evidence of compliance with any conditions precedent, if
any, provided for in this Trust Agreement that relate to any of the matters set
forth in Section 314(c) of the Trust Indenture Act.
44
Any certificate or opinion required to be given by an officer pursuant to
Section 314(c)(1) of the Trust Indenture Act shall be given in the form of an
Officers' Certificate.
SECTION 8.16 Number of Trustees.
(a) The number of Trustees shall be three, provided that the
Holder of all of the Common Securities by written instrument may increase or
decrease the number of Regular Trustees.
(b) If a Trustee ceases to hold office for any reason and the
number of Regular Trustees is not reduced pursuant to Section 8.16(a), or if the
number of Trustees is increased pursuant to Section 8.16(a), a vacancy shall
occur.
(c) The death, resignation, retirement, removal, bankruptcy,
incompetence or incapacity to perform the duties of a Trustee shall not operate
to dissolve, terminate or annul the Trust. Whenever a vacancy in the number of
Regular Trustees shall occur, until such vacancy is filled by the appointment of
a Regular Trustee in accordance with Section 8.9, the Regular Trustees in
office, regardless of their number (and notwithstanding any other provision of
this Agreement), shall have all the powers granted to the Regular Trustees and
shall discharge all the duties imposed upon the Regular Trustees by this Trust
Agreement.
SECTION 8.17 Delegation of Power.
(a) Any Regular Trustee may, by power of attorney consistent with
applicable law, delegate to any other natural person over the age of 21 his or
her power for the purpose of executing any documents contemplated in Section
2.7(a), including any registration statement or amendment thereof filed with the
Commission, or making any other governmental filing.
(b) The Regular Trustees shall have power to delegate from time to
time to such of their number or to the Sponsor the doing of such things and the
execution of such instruments either in the name of the Trust or the names of
the Regular Trustees or otherwise as the Regular Trustees may deem expedient, to
the extent such delegation is not prohibited by applicable law or contrary to
the provisions of the Trust, as set forth herein.
ARTICLE 9
DISSOLUTION, LIQUIDATION AND MERGER
SECTION 9.1 Dissolution upon Expiration Date. Unless earlier dissolved,
the Trust shall automatically dissolve on [............, ....] (the "Expiration
Date").
SECTION 9.2 Early Dissolution. The first to occur of any of the
following events is an "Early Dissolution Event":
(a) the occurrence of a Bankruptcy Event in respect of, or the
dissolution or liquidation (other than a deemed liquidation for tax purposes)
of, the Parent or the Sponsor;
(b) the occurrence of a Special Event except in the case of a Tax
Event following which the Parent has elected (i) to pay any Additional Sums (in
accordance with
45
Section 4.4) such that the net amount received by Holders of Preferred
Securities in respect of Distributions are not reduced as a result of such Tax
Event and the Parent has not revoked any such election or failed to make such
payments or (ii) to redeem all or some of the Debt Securities pursuant to
Section 4.4(a);
(c) the redemption, conversion or exchange of all of the Trust
Securities;
(d) an order for dissolution of the Trust shall have been entered
by a court of competent jurisdiction; and
(e) receipt by the Property Trustee of written notice from the
Parent or the Sponsor at any time (which direction is optional and wholly within
the discretion of the Parent and the Sponsor, as the case may be) of its
intention to dissolve the Trust and distribute the Debt Securities in exchange
for the Preferred Securities.
SECTION 9.3 Dissolution. The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the distribution
by the Property Trustee to Securityholders upon the liquidation of the Trust
pursuant to Section 9.4, or upon the redemption of all of the Trust Securities
pursuant to Section 4.2, of all amounts required to be distributed hereunder
upon the final payment of the Trust Securities; (b) the payment of all expenses
owed by the Trust; and (c) the discharge of all administrative duties of the
Regular Trustees, including the performance of any tax reporting obligations
with respect to the Trust or the Securityholders.
SECTION 9.4 Liquidation.
(a) If an Early Dissolution Event specified in clause (a), (b),
(d) or (e) of Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder an aggregate
principal amount of Debt Securities equal to the aggregate Liquidation Amount of
Trust Securities held by such Holder, subject to Section 9.4(d). Notice of
liquidation shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not later than 30 nor more than 60 days prior to the Liquidation
Date to each Holder of Trust Securities at such Holder's address as it appears
in the Securities Register. All notices of liquidation shall be prepared by the
Regular Trustees and shall:
(i) state the Liquidation Date;
(ii) state that, from and after the Liquidation Date, the
Trust Securities will no longer be deemed to be Outstanding and any
Trust Securities Certificates not surrendered for exchange will be
deemed to represent an aggregate principal amount of Debt Securities
equal to the aggregate Liquidation Amount of Preferred Securities held
by such Holder; and
(iii) provide such information with respect to the mechanics
by which Holders may exchange Trust Securities Certificates for Debt
Securities, or, if Section 9.4(d)
46
applies, receive a Liquidation Distribution, as the Regular Trustees or
the Property Trustee shall deem appropriate.
(b) Except where Section 9.2(c) or 9.4(d) applies, in order to
effect the liquidation of the Trust and distribution of the Debt Securities to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation Date
and, unless the Property Trustee determines otherwise, shall be the date which
is the fifteenth day (whether or not a Business Day) next preceding the
Liquidation Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Debt Securities in exchange
for the Outstanding Trust Securities Certificates.
(c) Except where Section 9.2(c) or 9.4(d) applies, after the
Liquidation Date, (i) the Trust Securities will no longer be deemed to be
Outstanding, (ii) the Clearing Agency or its nominee, as the record holder of
such Trust Securities, will receive a registered global certificate or
certificates representing the Debt Securities to be delivered upon such
distribution and (iii) any Trust Securities Certificates not held by the
Clearing Agency will be deemed to represent an aggregate principal amount of
Debt Securities equal to the aggregate Liquidation Amount of Preferred
Securities held by such Holders, and bearing accrued and unpaid interest in an
amount equal to the accrued and unpaid Distributions on such Trust Securities
until such certificates are presented to the Property Trustee for transfer or
reissuance.
(d) In the event that, notwithstanding the other provisions of
this Section 9.4, whether because of an order for dissolution entered by a court
of competent jurisdiction or otherwise, distribution of the Debt Securities in
the manner provided herein is determined by the Property Trustee not to be
practicable, the Trust Property shall be liquidated, and the Trust shall be
wound-up or terminated, by the Property Trustee in such manner as the Property
Trustee determines, and a majority of the Regular Trustees shall prepare,
execute and file the certificate of cancellation with the State Department of
Assessments and Taxation of Maryland. In such event, Securityholders will be
entitled to receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the "Liquidation Distribution"). If, upon any such winding-up
or termination, the Liquidation Distribution can be paid only in part because
the Trust has insufficient assets available to pay in full the aggregate
Liquidation Distribution, then, subject to the next succeeding sentence, the
amounts payable by the Trust on the Trust Securities shall be paid on a pro rata
basis (based upon Liquidation Amounts). The Holder of the Common Securities will
be entitled to receive Liquidation Distributions upon any such winding-up or
termination pro rata (determined as aforesaid) with Holders of Preferred
Securities, except that, if a Indenture Event of Default has occurred and is
continuing, the Preferred Securities shall have a priority over the Common
Securities.
SECTION 9.5 Mergers, Consolidations, Amalgamations or Replacements of
the Trust. The Trust may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, except pursuant to this Section 9.5
or Section 9.4. At the request of the Sponsor, with the consent of the Regular
Trustees and without the consent of the Property Trustee or the Holders of the
Preferred
47
Securities, the Trust may merge with or into, consolidate, amalgamate, be
replaced by or convey, transfer or lease its properties and assets substantially
as an entirety to a trust organized as such under the laws of any state;
provided, that (i) such successor entity either (a) expressly assumes all of the
obligations of the Trust with respect to the Preferred Securities or (b)
substitutes for the Preferred Securities other securities having substantially
the same terms as the Preferred Securities (the "Successor Securities") so long
as the Successor Securities rank the same as the Preferred Securities rank in
priority with respect to Distributions and payments upon liquidation, redemption
and otherwise, (ii) the Sponsor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debt Securities, (iii) the Successor Securities are listed, or any
Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed, if any, (iv) such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease does not cause the
Preferred Securities (including any Successor Securities) to be downgraded by
any nationally recognized statistical rating organization, (v) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does not
adversely affect the rights, preferences and privileges of the Holders of the
Preferred Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the Holder's interest in the
new entity), (vi) such successor entity has a purpose substantially identical to
that of the Trust, (vii) prior to such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease the Sponsor has received an Opinion
of Counsel to the effect that (a) such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease does not adversely affect the rights,
preferences and privileges of the Holders of the Preferred Securities (including
any Successor Securities) in any material respect (other than with respect to
any dilution of the Holder's interest in the new entity), (b) following such
merger, consolidation, amalgamation, replacement, conveyance, transfer or lease
neither the Trust nor such successor entity will be required to register as an
investment company under the 1940 Act, and (c) following such merger,
consolidation, amalgamation or replacement, the Trust or such successor entity
will be treated as a grantor trust for United States federal income tax purposes
and (viii) the Sponsor or any permitted successor or assignee owns, directly or
indirectly, all of the common securities of such successor entity and guarantees
the obligations of such successor entity under the Successor Securities at least
to the extent provided by the Guarantee. Notwithstanding the foregoing, the
Trust shall not, except with the consent of Holders of 100% in aggregate
Liquidation Amount of the Preferred Securities, consolidate, amalgamate, merge
with or into, be replaced by or convey, transfer or lease its properties and
assets substantially as an entirety to any other entity or permit any other
entity to consolidate, amalgamate, merge with or into, or replace it if such
consolidation, amalgamation, merger, replacement, conveyance, transfer or lease
would cause the Trust or the successor entity to be classified as other than a
grantor trust for United States federal income tax purposes.
ARTICLE 10
MISCELLANEOUS PROVISIONS
SECTION 10.1 Limitation of Rights of Securityholders. Other than as set
forth in Section 9.1, the death, incapacity, dissolution, bankruptcy or
termination of any Person having an interest, beneficial or otherwise, in Trust
Securities shall not operate to dissolve the Trust or terminate this Trust
Agreement, nor entitle the legal representatives or heirs of such Person or any
Securityholder for such Person to claim an accounting, take any action or bring
any
48
proceeding in any court for a partition or winding-up of the arrangements
contemplated hereby, nor otherwise affect the rights, obligations and
liabilities of the parties hereto or any of them.
SECTION 10.2 Amendment.
(a) This Trust Agreement may be amended from time to time by the
Trustees and the Sponsor, without the consent of any Securityholders, (i) to
cure any ambiguity, correct or supplement any provision herein which may be
inconsistent with any other provision herein, or to make any other provisions
with respect to matters or questions arising under this Trust Agreement, which
shall not be inconsistent with the other provisions of this Trust Agreement,
(ii) to modify, eliminate or add to any provisions of this Trust Agreement to
such extent as shall be necessary to ensure that the Trust will be classified
for United States federal income tax purposes as a grantor trust at all times
that any Trust Securities are Outstanding or to ensure that the Trust will not
be required to register as an "investment company" under the 1940 Act, or be
classified as other than a grantor trust for United States federal income tax
purposes, or (iii) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Trust Agreement under the Trust
Indenture Act; provided, however, that in the case of clause (i), such action
shall not adversely affect in any material respect the interests of any
Securityholder, and any such amendments of this Trust Agreement shall become
effective when notice thereof is given to the Securityholders.
(b) Except as provided in Section 10.2(c) hereof, any provision of
this Trust Agreement may be amended by the Trustees and the Sponsor with (i) the
consent of Holders representing not less than a majority (based upon Liquidation
Amounts) of the Trust Securities then Outstanding, acting as a single class, and
(ii) receipt by the Trustees of an Opinion of Counsel to the effect that such
amendment or the exercise of any power granted to the Trustees in accordance
with such amendment will not affect the Trust's status as a grantor trust for
United States federal income tax purposes or the Trust's exemption from the
status of an "investment company" under the 1940 Act, provided, however, if any
amendment or proposal that would adversely affect the powers, preferences or
special rights of the Trust Securities, whether by way of amendment or
otherwise, would adversely affect only the Preferred Securities or only the
Common Securities, then only the affected class will be entitled to vote on such
amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a majority in Liquidation Amount of such class of
Trust Securities.
(c) In addition to and notwithstanding any other provision in this
Trust Agreement, without the consent of each affected Securityholder (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount of
any Distribution required to be made in respect of the Trust Securities as of a
specified date or (ii) restrict the right of a Securityholder to institute suit
for the enforcement of any such payment on or after such date; notwithstanding
any other provision herein, without the unanimous consent of the Securityholders
(such consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.
(d) Notwithstanding any other provisions of this Trust Agreement,
no Trustee shall enter into or consent to any amendment to this Trust Agreement
which would cause the
49
Trust to fail or cease to qualify for the exemption from the status of an
"investment company" under the 1940 Act or be classified as other than a grantor
trust for United States federal income tax purposes.
(e) Notwithstanding anything in this Trust Agreement to the
contrary, without the consent of the Sponsor, this Trust Agreement may not be
amended in a manner which imposes any additional obligation on the Sponsor.
(f) In the event that any amendment to this Trust Agreement is
made, the Regular Trustees shall promptly provide to the Sponsor a copy of such
amendment.
(g) The Property Trustee shall not be required to enter into any
amendment to this Trust Agreement which affects its own rights, duties or
immunities under this Trust Agreement. The Property Trustee shall be entitled to
receive an Opinion of Counsel and an Officers' Certificate stating that any
amendment to this Trust Agreement is in compliance with this Trust Agreement and
that all conditions precedent, if any, in this Trust Agreement to the execution
and delivery of such amendment have been satisfied.
SECTION 10.3 Separability. In case any provision in this Trust
Agreement or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 10.4 Governing Law. EXCEPT AS PROVIDED IN SECTION 10.10 HEREOF,
THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT AND
THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES.
SECTION 10.5 Payments Due on Non-Business Day. If the date fixed for
any payment on any Trust Security shall be a day which is not a Business Day,
then such payment need not be made on such date but may be made on the next
succeeding day which is a Business Day except as otherwise provided in Section
4.1(a) and Section 4.2(d), with the same force and effect as though made on the
date fixed for such payment, and no interest shall accrue thereon for the period
after such date.
SECTION 10.6 Successors. This Trust Agreement shall be binding upon and
shall inure to the benefit of any successor to the Sponsor, the Trust or the
Relevant Trustee, including any successor by operation of law. Except in
connection with a transaction that is permitted under Article 8 of the Indenture
and pursuant to which the assignee agrees in writing to perform the Sponsor's
obligations hereunder, the Sponsor shall not assign its obligations hereunder.
SECTION 10.7 Headings. The Article and Section headings are for
convenience only and shall not affect the construction of this Trust Agreement.
SECTION 10.8 Reports, Notices and Demands. Any report, notice, demand
or other communication which by any provision of this Trust Agreement is
required or permitted to be given or served to or upon any Securityholder or the
Sponsor may be given or served in writing
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by deposit thereof, first-class postage prepaid, in the United States mail, hand
delivery or facsimile transmission, in each case, addressed, (a) in the case of
a Holder of Preferred Securities, to such Holder as such Holder's name and
address may appear on the Securities Register; and (b) in the case of the Holder
of the Common Securities, to SNH Capital Trust Holdings, c/o Senior Housing
Properties Trust, 400 Centre Street, Newton, Massachusetts 02458.
Any notice, demand or other communication which by any provision of
this Trust Agreement is required or permitted to be given or served to or upon
the Trust, the Property Trustee or the Regular Trustees shall be given in
writing addressed (until another address is published by the Trust) as follows:
(a) with respect to the Property Trustee, to
[....................................................., Attention: ...........]
and (b) with respect to the Regular Trustees, to them at the address for notices
to the Sponsor, marked "Attention: [...........]. Such notice, demand or other
communication to or upon the Trust or the Property Trustee shall be deemed to
have been sufficiently given or made only upon actual receipt of the writing by
the Trust or the Property Trustee.
SECTION 10.9 Agreement Not to Petition. Each of the Trustees and the
Sponsor agrees for the benefit of the Securityholders that, until at least one
year and one day after the Trust has been dissolved in accordance with Article
9, it shall not file, or join in the filing of, a petition against the Trust
under any Bankruptcy Law or otherwise join in the commencement of any proceeding
against the Trust under any Bankruptcy Law. In the event the Sponsor takes
action in violation of this Section 10.9, the Property Trustee agrees, for the
benefit of Securityholders, that, at the expense of the Sponsor, it shall file
an answer with the bankruptcy court or otherwise properly contest the filing of
such petition by the Sponsor against the Trust or the commencement of such
action and raise the defense that the Sponsor has agreed in writing not to take
such action and should be stopped and precluded therefrom and such other
defenses, if any, as counsel for the Trustee or the Trust may assert. The
provisions of this Section 10.9 shall survive the dissolution of this Trust
Agreement.
SECTION 10.10 Trust Indenture Act; Conflict with Trust Indenture Act.
(a) This Trust Agreement is subject to the provisions of the Trust
Indenture Act that are required to be part of this Trust Agreement and shall, to
the extent applicable, be governed by such provisions.
(b) The Property Trustee shall be the only Trustee which is the
trustee for the purposes of the Trust Indenture Act.
(c) If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Trust
Agreement by any of the provisions of the Trust Indenture Act, such required
provision shall control. If any provision of this Trust Agreement modifies or
excludes any provision of the Trust Indenture Act which may be so modified or
excluded, the latter provision shall be deemed to apply to this Trust Agreement
as so modified or to be excluded, as the case may be.
51
(d) The application of the Trust Indenture Act to this Trust
Agreement shall not affect the nature of the Trust Securities as equity
securities representing undivided beneficial interests in the assets of the
Trust.
SECTION 10.11 Acceptance of Terms of Trust Agreement, Guarantee and
Indenture. THE RECEIPT AND ACCEPTANCE OF A TRUST SECURITY OR ANY INTEREST
THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR BENEFICIAL OWNER, WITHOUT ANY
SIGNATURE OR FURTHER MANIFESTATION OF ASSENT, SHALL CONSTITUTE THE UNCONDITIONAL
ACCEPTANCE BY THE SECURITYHOLDER AND ALL OTHERS HAVING A BENEFICIAL INTEREST IN
SUCH TRUST SECURITY OF ALL THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT AND
AGREEMENT TO SUBORDINATION PROVISIONS AND OTHER TERMS OF THE GUARANTEE AND THE
INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST, SUCH SECURITYHOLDER
AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST AGREEMENT SHALL BE
BINDING, OPERATIVE AND EFFECTIVE AS THE AGREEMENT OF THE TRUST AND SUCH
SECURITYHOLDER AND SUCH OTHERS.
SECTION 10.12 Counterparts. This Trust Agreement may contain more than
one counterpart of the signature page and this Trust Agreement may be executed
by the affixing of the signature of each of the Trustees to one of such
counterpart signature pages. All of such counterpart signature pages shall be
read as though one, and they shall have the same force and effect as though all
of the signers had signed a single signature page.
IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement
to be duly executed as of the day and year first above written.
SNH CAPITAL TRUST HOLDINGS, as Sponsor
By:
-------------------------------------------
Name:
Title:
_________________________, as Property Trustee
By:
-------------------------------------------
Name:
Title:
-------------------------------------------
as Regular Trustee
52
-------------------------------------------
as Regular Trustee
53
EXHIBIT A
SNH CAPITAL TRUST [...]
CERTIFICATE OF TRUST
THIS IS TO CERTIFY THAT:
FIRST: The undersigned trustees hereby form a business trust pursuant
to the laws of the State of Maryland.
SECOND: The name of the business trust (the "Trust") is:
SNH Capital Trust [...]
THIRD: The address of the Trust's principal office in the State of
Maryland is c/o Ballard Spahr Andrews & Ingersoll, LLP, 300 East Lombard Street,
Baltimore, Maryland 21202, Attention: James J. Hanks, Jr.
FOURTH: The name and business address of the Trust's resident agent are
James J. Hanks, Jr., c/o Ballard Spahr Andrews & Ingersoll, LLP, 300 East
Lombard Street, Baltimore, Maryland 21202.
The undersigned, being all of the trustees of the Trust, acknowledge
under the penalties of perjury, that to the best of their knowledge and belief,
the facts stated herein are true.
IN WITNESS WHEREOF, each of the undersigned trustees have signed this
Certificate of Trust this [....] day of May, [......].
______________________
[Name of Trustee]
______________________
[Name of Trustee]
A-1
EXHIBIT B
Form of Certificate Depositary Agreement
[Attach DTC Letter]
B-1
EXHIBIT C
Form of Common Securities of SNH Capital Trust [...]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO AN ENTITY WHOLLY OWNED BY SENIOR
HOUSING PROPERTIES TRUST OR TO CERTAIN SUCCESSORS F SENIOR HOUSING PROPERTIES
TRUST.
Certificate Number _____ Number of Common Securities ___
Certificate Evidencing Common Securities
of
SNH Capital Trust [...]
Common Securities
(Liquidation Amount $[...] per Common Security)
SNH Capital Trust [...], a business trust created under the laws of the
State of Maryland (the "Trust"), hereby certifies that SNH Capital Trust
Holdings, a business trust created under the laws of the State of Maryland (the
"Holder"), is the registered owner of ________ common securities of the Trust
representing undivided beneficial interests in the assets of the Trust (the
"Common Securities"). Except as set forth in Section 5.10 of the Trust Agreement
(as defined below), the Common Securities are not transferable and any attempted
transfer hereof shall be void. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Common
Securities are set forth in, and this certificate and the Common Securities
represented hereby are issued and shall in all respects be subject to the terms
and provisions of, the Amended and Restated Trust Agreement of the Trust dated
as of [.........., ....], as the same may be amended from time to time (the
"Trust Agreement") including the designation of the terms of the Common
Securities as set forth therein. The Trust will furnish a copy of the Trust
Agreement and the Guarantee to the Holder without charge upon written request to
the Trust at its principal place of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Regular Trustees of the Trust has
executed this certificate.
Dated: SNH CAPITAL TRUST [...]
By: ______________________________________
Name:_____________________________________
A Regular Trustee and not individually
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Common Securities referred to in the
within-mentioned Trust Agreement.
[NAME OF PROPERTY TRUSTEE],
as Property Trustee
-------------------------------------
Authorized Signatory
C-2
EXHIBIT D
Form of Preferred Securities of SNH Capital Trust [...]
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE, INSERT - This
Preferred Security is a Book-Entry Preferred Securities Certificate within the
meaning of the Trust Agreement hereinafter referred to and is registered in the
name of The Depository Trust Company ("DTC") or a nominee of DTC. This Preferred
Security is exchangeable for Preferred Securities registered in the name of a
person other than DTC or its nominee only in the limited circumstances described
in the Trust Agreement and no transfer of this Preferred Security (other than a
transfer of this Preferred Security as a whole by DTC to a nominee of DTC or by
a nominee of DTC to DTC or another nominee of DTC) may be registered except in
limited circumstances.
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation ("DTC"), to 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
requested by an authorized representative of DTC (and any payment is 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 inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
Certificate Number ____ Number of Preferred Securities ____
CUSIP NO. ___________
CERTIFICATE EVIDENCING PREFERRED SECURITIES
OF
SNH CAPITAL TRUST [...]
[Title of Preferred Securities]
(Liquidation Amount $[...] per Preferred Security)
SNH Capital Trust [...], a business trust created under the laws of the
State of Maryland (the "Trust"), hereby certifies that ______________ (the
"Holder") is the registered owner of ___________________ (_______) preferred
securities of the Trust representing an undivided beneficial interest in the
assets of the Trust and designated the SNH Capital Trust [...] [title of
Preferred Securities] (Liquidation Amount $[...] per Preferred Security) (the
"Preferred Securities"). Except to the extent set forth in the Trust Agreement
(as defined below), the Preferred Securities are transferable on the books and
records of the Trust, in person or by a duly authorized attorney, upon surrender
of this certificate duly endorsed and in proper form for transfer as provided in
Section 5.4 of the Trust Agreement (as defined below). The designations, rights,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Securities are set forth in, and this certificate and the Preferred
Securities represented hereby are issued and shall in all respects be subject to
the terms and provisions of, the Amended and Restated Trust Agreement of the
Trust dated as of [............, ....] as the same may be amended from time to
time (the "Trust Agreement") including the designation of the terms of Preferred
Securities as set forth therein. The Holder is entitled to the benefits of the
Guarantee Agreement
entered into by Senior Housing Properties Trust, a Maryland real estate
investment trust, and [Name of Guarantee Trustee], as Guarantee Trustee, dated
as of [............, ....] (the "Guarantee"), to the extent provided therein.
The Trust will furnish a copy of the Trust Agreement and the Guarantee to the
Holder without charge upon written request to the Trust at its principal place
of business or registered office.
Upon receipt of this certificate, the Holder is bound by the Trust
Agreement and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, one of the Regular Trustees of the Trust has
executed this certificate.
Dated: SNH CAPITAL TRUST [...]
By: ________________________________________
Name:_______________________________________
As Regular Trustee and not individually
D-2
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the within-
mentioned Trust Agreement.
[NAME OF PROPERTY TRUSTEE],
as Property Trustee
By: ______________________________
Authorized Signatory
D-3
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Security to:
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
- -----------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
agent to transfer this Preferred Securities Certificate on the books of the
Trust. The agent may substitute another to act for him or her.
Date: __________________________
Signature: ______________________
(Sign exactly as your name appears on the other side of this Preferred
Securities Certificate)
D-4
[TO BE ATTACHED TO GLOBAL CERTIFICATE]
SCHEDULE A
The initial Liquidation Amount of this Global Certificate shall be
$_________. The following increases or decreases in the Liquidation Amount of
this Global Certificate have been made:
Amount of Increase
in Liquidation
Amount of This Liquidation Amount
Global Certificate Amount of Decrease in of this Global Signature of
Including Upon Liquidation Amount of Certificate Authorized Officer
Exercise of this Global Following such of Trustee or
Date Made Over-Allotment Option Certificate Decrease or Increase Securities Custodian
- --------------------------------------------------------------------------------------------------------------------
D-5