EXHIBIT 4.2
SUPPLEMENTAL INDENTURE NO. 1
By and Between
SENIOR HOUSING PROPERTIES TRUST
and
STATE STREET BANK AND TRUST COMPANY
As of June 21, 2001
SUPPLEMENTAL TO THE INDENTURE DATED AS OF JUNE 21, 2001
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SENIOR HOUSING PROPERTIES TRUST
10.125% Junior Subordinated Debentures due June 15, 2041
TABLE OF CONTENTS
ARTICLE I DEFINITIONS...................................................................................1
1.1. Definition of Terms...........................................................................1
ARTICLE II GENERAL TERMS AND CONDITIONS OF THE DEBENTURES................................................3
2.1. Designation and Principal Amount..............................................................3
2.2. Stated Maturity...............................................................................4
2.3. Form and Payment; Minimum Transfer Restriction................................................4
2.4. Procedure for Distribution of Debentures to Holders of Trust Preferred
Securities; Global Debenture; Depositary......................................................4
2.5. Interest......................................................................................5
2.6. Applicability of Discharge, Defeasance and Covenant Defeasance Provisions.....................6
ARTICLE III REDEMPTION OF THE DEBENTURES..................................................................6
3.1. Tax Event or Investment Company Event Redemption..............................................6
3.2. Optional Redemption by Company................................................................6
3.3. Payment of Redemption Price if Preferred Securities are Book-entry............................6
ARTICLE IV EXTENSION OF INTEREST PAYMENT PERIOD..........................................................7
4.1. Extension of Interest Payment Period..........................................................7
4.2. Notice of Extension...........................................................................8
ARTICLE V COVENANTS.....................................................................................8
5.1. Additional Covenants of the Company...........................................................8
ARTICLE VI EVENTS OF DEFAULT.............................................................................9
6.1. Events of Default.............................................................................9
ARTICLE VII SUBORDINATION OF DEBENTURES...................................................................9
14.1. Agreement to Subordinate.....................................................................10
14.2. When Distribution Must be Paid Over..........................................................10
14.3. Note By Company..............................................................................11
14.4. Subrogation..................................................................................11
14.5. Relative Rights..............................................................................11
14.6. Subordination May Not Be Impaired by Company.................................................11
14.7. Distribution or Notice to Representative.....................................................11
14.8. Authorization of Trustee to Effectuate Subordination of the Debentures.......................12
ARTICLE VIII EFFECTIVENESS................................................................................12
ARTICLE IX MISCELLANEOUS................................................................................12
9.1. Separablity..................................................................................12
9.2. Supplemental Indenture Controls..............................................................12
9.3. Governing Law................................................................................12
9.4. Counterparts.................................................................................12
i
This SUPPLEMENTAL INDENTURE NO. 1 (this "Supplemental Indenture") made
and entered into as of June 21, 2001 between SENIOR HOUSING PROPERTIES TRUST, a
Maryland real estate investment trust (the "Company"), and STATE STREET BANK AND
TRUST COMPANY, a Massachusetts trust company, as Trustee (the "Trustee"),
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have executed and delivered an
Indenture, dated as of June 21, 2001 (the "Base Indenture" and, together with
this Supplemental Indenture, the "Indenture") to provide for the future issuance
of the Company's junior subordinated debt securities (the "Securities") to be
issued from time to time in one or more series;
WHEREAS, pursuant to the terms of the Base Indenture, the Company
desires to provide for the establishment of a series of its Securities, to be
known as its 10.125% Junior Subordinated Debentures due June 15, 2041 (the
"Debentures"), the form and substance of such Debentures and the terms,
provisions and conditions thereof to be set forth as provided in the Base
Indenture and this Supplemental Indenture;
WHEREAS, SNH Capital Trust I, a Maryland business trust (the "Trust"),
has offered to the purchasers (the "Underwriters") named in Schedule A to the
Underwriting Agreement, dated June 18, 2001 (the "Underwriting Agreement"),
among the Representatives of the several Underwriters, SNH Capital Trust
Holdings as sponsor of the Trust (the "Sponsor"), the Trust and the Company,
$25,000,000 aggregate liquidation amount of its 10.125% Trust Preferred
Securities (the "Trust Preferred Securities"), representing undivided beneficial
interests in the assets of the Trust, and proposes to invest the proceeds from
the sale of the Trust Preferred Securities, together with the proceeds of the
sale by the Trust to the Sponsor, as designee of the Company, of $773,200
aggregate liquidation amount of its Common Securities, in $25,773,200 aggregate
principal amount of the Debentures; and
WHEREAS, pursuant to the Underwriting Agreement, the Trust has also
granted to the Underwriters an option to acquire up to an additional $3,750,000
aggregate liquidation amount of its Trust Preferred Securities to cover
overallotments, and proposes to invest the proceeds from any sale of such Trust
Preferred Securities, together with the proceeds of the sale by the Trust to the
Sponsor, as designee of the Company, of up to an additional $116,000 aggregate
liquidation amount of its Common Securities, up to an $3,866,000 in additional
aggregate principal amount of the Debentures;
NOW, THEREFORE, in consideration of the purchase and acceptance of the
Debentures by the Trust, and for the purpose of setting forth, as provided in
the Base Indenture, the form and substance of the Debentures and the terms,
provisions and conditions thereof, the Company covenants and agrees with the
Trustee as follows:
ARTICLE I
DEFINITIONS
1.1. Definition of Terms. The following definitions supplement, and, to
the extent inconsistent with, replace the definitions in Section 101 of the
Indenture:
(a) the term "Trust Preferred Securities" as used herein means
"Preferred Securities" as such term is used in the Trust Agreement; and
(b) the following terms have the meanings given to them in the Trust
Agreement: (i) Business Day, (ii) Closing Date, (iii) Distributions, (iv)
Guarantee, (v) Investment Company Event, (vi) Liquidation Amount, (vii) Property
Trustee, (viii) Regular Trustee, (ix) Sponsor and (x) Tax Event.
"Additional Interest" has the meaning specified in Section 2.5(a).
"Additional Sums" means such additional amounts as may be necessary in
order that the amount of Distributions due and payable by the Trust on the Trust
Preferred Securities and Common Securities that at any time remain outstanding
in accordance with the terms thereof shall not be reduced as a result of any
additional taxes, duties, assessments and other governmental charges of whatever
nature, imposed by the United States government or any other taxing authority
(but not including withholding taxes imposed on holders of such Preferred
Securities and Common Securities).
"Common Security" means an undivided beneficial interest in the assets
of the Trust.
"Common Stock" means common shares of beneficial interest, $.01 par
value per share, of the Company, or any other stock of any class of the Company
which has no preference in respect of dividends or of amounts payable in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the Company and which is not subject to redemption by the Company.
"Coupon Rate" has the meaning specified in Section 2.5(a).
"Extension Period" has the meaning specified in Section 4.1(a).
"Global Debenture" has the meaning specified in Section 2.4(a).
"Interest Payment Date" has the meaning specified in Section 2.5.
"Debentures" has the meaning specified in the second recital to this
Supplemental Indenture.
"Optional Redemption Price" has the meaning specified in Section 3.2.
"Obligations" has the meaning specified in Section 14.1(a).
"Record Date" has the meaning specified in Section 2.5(a).
"Representatives" has the meaning specified in Section 14.2.
"Securities" has the meaning specified in the first recital to this
Supplemental Indenture.
"Senior Indebtedness of the Company" means (i) any indebtedness of the
Company for borrowed or purchased money, whether or not evidenced by bonds,
debentures, notes or other
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written instruments, (ii) obligations of the Company for reimbursement under
letters of credit, banker's acceptances, security purchase facilities or similar
facilities issued for the account of the Company, (iii) any indebtedness or
other obligations of the Company with respect to commodity contracts (including
but not limited to contracts in the spot, forward and markets, options, and
contracts for differences), interest rate commodity and currency swap
agreements, cap, floor and collar agreements, currency spot and forward
contracts, and other similar agreements or arrangements designed to protect
against fluctuations in commodity prices, currency exchange or interest rates,
and (iv) any guarantees, endorsements (other than by endorsement of negotiable
instruments for collection in the ordinary course of business) or other similar
contingent obligations in respect of obligations of others of a type described
in (i), (ii) or (iii) above, whether or not such obligation is classified as a
liability on a balance sheet prepared in accordance with generally accepted
accounting principles, in each case listed in (i), (ii), (iii) and (iv) above
whether outstanding on the date of execution of this Supplemental Indenture or
thereafter incurred, other than obligations ranking on a parity with the
Debentures or ranking junior to the Debentures; provided, however, that "Senior
Indebtedness of the Company" does not include obligations of the Company to
trade creditors.
"Special Event" has the meaning specified in Section 3.1.
"Special Event Redemption Price" has the meaning specified in Section
3.1.
"Trust" has the meaning specified in the third recital to this
Supplemental Indenture.
"Trust Agreement" means the Amended and Restated Trust Agreement of SNH
Capital Trust I dated as of June 21, 2001 among SNH Capital Trust Holdings, as
Sponsor, State Street Bank and Trust Company, as Property Trustee, the Regular
Trustees named therein and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust, as the same may be modified,
amended or supplemented from time to time, including all exhibits and the
provisions of the Trust Indenture Act that are deemed to be a part of the Trust
Agreement .
"Trust Preferred Securities" has the meaning specified in the third
recital to this Supplemental Indenture.
"Trust Securities" means the Common Securities and the Trust Preferred
Securities.
"Underwriters" has the meaning specified in the third recital to this
Supplemental Indenture.
"Underwriting Agreement" has the meaning specified in the third recital
to this Supplemental Indenture.
ARTICLE II
GENERAL TERMS AND CONDITIONS OF THE DEBENTURES
2.1. Designation and Principal Amount. There is hereby authorized one
series of Securities, to be designated the "10.125% Junior Subordinated
Debentures due June 15, 2041," in the initial aggregate principal amount of up
to $29,639,200, subject to the right of the Company to reopen such series for
issuances of additional securities of such series and except as
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provided in Section 306 of the Base Indenture. The Debentures (together with the
Trustee's certificate of authentication) shall be substantially in the form of
Exhibit A hereto, which is hereby incorporated in and made a part of this
Supplemental Indenture.
2.2. Stated Maturity. The Stated Maturity of the Debentures is June 15,
2041, provided, however, the Debentures may be earlier redeemed at the option of
the Company as provided in Article III below.
2.3. Form and Payment; Minimum Transfer Restriction.
(a) The Debentures shall be issued to the Property Trustee in fully
registered definitive form without coupons in minimum denominations of $25 and
integral multiples of $25 in excess thereof. Principal and interest on the
Debentures issued in definitive form will be payable, the transfer of such
Debentures will be registrable and such Debentures will be exchangeable for
Debentures bearing identical terms and provisions at the Corporate Trust Office;
provided, however, that payment of interest may be made at the option of the
Company by check mailed to the registered holder at such address as shall appear
in the Register. Notwithstanding the foregoing, so long as the registered holder
of any Debentures is the Property Trustee, the payment of the principal of and
interest (including Additional Interest and Additional Sums, if any) on such
Debentures held by the Property Trustee will be made at such place, or by wire
transfer of immediately available funds to such account, as may be designated by
the Property Trustee. The Register for the Debentures shall be kept at the
Corporate Trust Office, and the Trustee is hereby appointed registrar for the
Debentures.
(b) The Debentures may be transferred or exchanged only in minimum
denominations of $25 and integral multiples of $25 in excess thereof, and any
attempted transfer, sale or other disposition of Debentures in a denomination of
less than $25 shall be deemed to be void and of no legal effect whatsoever, and
any such transferee shall be deemed not to be the holder of such Debentures for
any purpose, including but not limited to the receipt of payments in respect of
such Debentures and such transferee shall be deemed to have no interest
whatsoever in such Debentures.
2.4. Procedure for Distribution of Debentures to Holders of Trust
Preferred Securities; Global Debenture; Depositary. If distributed to holders of
Trust Preferred Securities pursuant to Section 9.4 of the Trust Agreement, the
Debentures will be issued to such holders in the same form as the Trust
Preferred Securities that such Debentures replace in accordance with the
following procedures:
(a) So long as Debentures are eligible for book-entry settlement with
the Depositary, the Debentures will initially be issued in the form of one or
more registered global securities without coupons ("Global Debentures") that
will be deposited with, or on behalf of, a Depositary, who shall be the
Depositary for the Trust Preferred Securities. Initially, the Depositary shall
be The Depository Trust Company ("DTC"), or any successor Depositary for the
Trust Preferred Securities, and the Global Debenture shall be registered in the
name of DTC's nominee, Cede & Co. Except under the circumstance described below,
the Debentures will not be issuable in definitive form. Unless and until it is
exchanged in whole or in part for the individual Debentures represented thereby,
a Global Debenture may not be transferred except as
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a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another
nominee of DTC or by DTC or any nominee of DTC to a successor depositary or any
nominee of such successor.
(b) So long as DTC or its nominee is the registered owner of a Global
Debenture, DTC or such nominee, as the case may be, will be considered the sole
owner or holder of the Debentures represented by such Global Debenture for all
purposes under this Supplemental Indenture. Except as described below, owners of
beneficial interest in Debentures evidenced by a Global Debenture will not be
entitled to have any of the individual Debentures represented by such Global
Debenture registered in their names, will not receive or be entitled to receive
physical delivery of any such Debentures in definitive form and will not be
considered the owners or holders thereof under the Indenture or this
Supplemental Indenture.
(c) If DTC is at any time unwilling, unable or ineligible to continue
as depositary and a successor depositary is not appointed by the Company within
90 days, the Company will issue individual Debentures in exchange for the Global
Debenture or Global Debentures representing such Debentures. In addition, the
Company may at any time and in its sole discretion, subject to certain
limitations set forth in the Indenture, determine not to have any of such
Debentures represented by one or more Global Debentures and, in such event, will
issue individual Debentures in exchange for the Global Debenture or Global
Debentures representing the Debentures. Individual Debentures so issued will be
issued in denominations of $25 and integral multiples thereof.
(d) If the Debentures are distributed to holders of the Trust Preferred
Securities pursuant to the terms of the Trust Agreement, the Company will use
its best efforts to list the Debentures on the New York Stock Exchange or such
other stock exchange or other organization, if any, on which the Trust
Securities are then listed.
(e) Each Global Debenture shall bear substantially the following legend
on the face thereof:
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.
2.5. Interest. (a) Each Debenture will bear interest at the rate of
10.125% per annum (the "Coupon Rate") from and including June 21, 2001 until the
principal thereof becomes due and payable, and will bear interest on any overdue
principal at the Coupon Rate and (to the extent that payment of such interest is
enforceable under applicable law) on any overdue installment of interest at the
Coupon Rate ("Additional Interest") until paid, compounded
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quarterly, payable (subject to the provisions of Article IV) quarterly in
arrears on the 15th day of September, December, March and June of each year
(each, an "Interest Payment Date"), commencing on September 15, 2001 to the
Person in whose name such Debenture is registered at the close of business on
the Record Date next preceding such Interest Payment Date. The "Record Date" for
payment of interest will be one Business Day before the Interest Payment Date,
unless such Debenture is registered to a holder other than the Property Trustee
or a nominee of the Depositary, in which case the Record Date for payment of
interest will be the fifteenth calendar day before the applicable Interest
Payment Date, whether or not a Business Day. Until liquidation, if any, of the
Trust, each Debenture will be held in the name of the Property Trustee in trust
for the benefit of the holders of the Trust Securities.
(b) The amount of interest payable for any period will be computed on
the basis of a 360-day year of twelve 30-day months. In the event that any date
on which interest is payable on the Debentures is not a Business Day, then
payment of interest 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), with the same force and effect as if made on the date such
payment was originally payable.
2.6. Applicability of Discharge, Defeasance and Covenant Defeasance
Provisions. The Discharge and Covenant Defeasance provisions in Article Thirteen
of the Base Indenture will apply to the Debentures. The Defeasance provisions in
Article Thirteen of the Base Indenture will not apply to the Debentures.
ARTICLE III
REDEMPTION OF THE DEBENTURES
3.1. Tax Event or Investment Company Event Redemption. If a Tax Event
or Investment Company Event (either a "Special Event") shall occur and be
continuing, the Company may redeem the Debentures at any time within 180 days
following the occurrence of that Special Event, in whole but not in part, at a
redemption price (the "Special Event Redemption Price") equal to 100% of the
principal amount of the Debentures plus accrued and unpaid interest thereon to
the Redemption Date.
3.2. Optional Redemption by Company. The Company shall have the option
to redeem the Debentures at any time on or after June 15, 2006, in whole or in
part, at a redemption price (the "Optional Redemption Price") equal to 100% of
the principal amount of the Debentures plus accrued and unpaid interest thereon
to the Redemption Date.
3.3. Payment of Redemption Price if Preferred Securities are
Book-entry. If the Preferred Securities are in book-entry-only form, in order
for the Property Trustee to meet the obligation set forth in Section 4.2(d) of
the Trust Agreement, the Company shall deposit with the Trustee an amount
sufficient to pay the Special Event Redemption Price or the Optional Redemption
Price, as the case may be, by 10:00 a.m., New York City time, on the date such
Special Event Redemption Price or Optional Redemption Price, as the case may be,
is to be paid.
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ARTICLE IV
EXTENSION OF INTEREST PAYMENT PERIOD
4.1. Extension of Interest Payment Period.
(a) So long as no Event of Default under Section 501 of the Base
Indenture (as supplemented by Section 6.1 of this Supplemental Indenture) has
occurred and is continuing, the Company shall have the right, at any time during
the term of the Debentures, from time to time to defer the payment of interest
and Additional Sums, if any, by extending the interest payment period of such
Debentures for a period not exceeding 20 consecutive quarters (an "Extension
Period"). No Extension Period shall extend beyond the Stated Maturity of the
Debentures. To the extent permitted by applicable law, accrued and unpaid
interest and Additional Sums, the payment of which has been deferred because of
an Extension Period imposed pursuant to this Section 4.1, will bear Additional
Interest compounded quarterly. At the end of the Extension Period, the Company
shall pay all interest then accrued and unpaid on the Debentures, including any
Additional Interest and Additional Sums, if applicable, to the holders of the
Debentures in whose names the Debentures are registered in the Register on the
first Record Date preceding the end of the Extension Period. Before the
termination of any Extension Period, the Company may elect to (i) shorten the
Extension Period or (ii) further extend such Extension Period, provided that
such period together with all such further extensions thereof shall not exceed
20 consecutive quarters, or extend beyond the Stated Maturity. At any time
following the termination of any Extension Period and upon the payment of any
accrued and unpaid Additional Interest and Additional Sums, if applicable, then
due, the Company may elect to begin a new Extension Period, subject to the
foregoing requirements. No interest or Additional Sums shall be due and payable
during an Extension Period, except at the end thereof.
(b) During any such Extension Period, the Company shall not (i) declare
or pay any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's shares of beneficial
interest, (ii) make any payment of principal of or interest or premium, if any,
on, or repay, repurchase or redeem any indebtedness or debt securities of the
Company that rank on a parity with or junior to the Debentures in right of
payment or (iii) make any guarantee payments with respect to any guarantee by
the Company of indebtedness or debt securities of any Subsidiary of the Company
if such guarantee ranks on parity with or junior to the Debentures in right of
payment (other than (A) dividends or distributions payable solely in Common
Stock, (B) any reclassification of any class of the Company's shares of
beneficial interest, (C) any declaration of a dividend in connection with the
implementation of a plan of the Company providing for the issuance by the
Company to all holders of its Common Stock of rights entitling the holders
thereof to subscribe for or purchase shares of Common Stock or any class or
series of preferred shares, which rights are (x) deemed to be transferred with
such shares of Common Stock, (y) issued in respect of future issuances of Common
Stock and (z) not exercisable until the occurrence of a specified event or
events (a "Rights Plan"), (D) the issuance of any shares of beneficial interest
of the Company under any Rights Plan or the redemption or repurchase of any
rights distributed pursuant to a Rights Plan, (E) payments under the Guarantee
relating to the Trust Preferred Securities, and (F) purchases of Common Stock
issued under, or issued pursuant to rights issued under, any of the Company's
benefit plans for its trustees, officers, employees, consultants or advisors or
the directors, officers, employees, consultants or advisors of the Company's
advisor).
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4.2. Notice of Extension.
(a) If the Property Trustee is the only registered Holder of the
Debentures at the time the Company elects to begin, shorten or extend an
Extension Period, the Company shall give written notice to the Trust and the
Trustee of its election to begin, shorten or extend any Extension Period on or
before the earlier of (i) one Business Day before the Record Date for the next
succeeding Interest Payment Date or (ii) subject to applicable law and stock
exchange rules, the date the Trust is required to give notice of an Extension
Period to the New York Stock Exchange or any other securities exchange or other
applicable self-regulatory organization where the Trust Preferred Securities are
then listed. The Company shall cause the Trust to give notice of the Company's
election to begin, shorten or extend an Extension Period to the holders of such
Trust Preferred Securities.
(b) If the Property Trustee is not the only Holder of the Debentures at
the time the Company elects to begin, shorten or extend an Extension Period, the
Company shall give the Holders of the Debentures, the Regular Trustees and the
Trustee written notice of its election to begin, shorten or extend such
Extension Period at least 10 Business Days prior to the earlier of (i) the next
succeeding Interest Payment Date or (ii) subject to applicable law and stock
exchange rules, the date the Trust is required to give notice of an Extension
Period to the New York Stock Exchange or any other securities exchange or other
applicable self-regulatory organization where the Trust Preferred Securities are
then listed.
(c) The quarter in which any notice is given pursuant to paragraphs (a)
or (b) of this Section 4.2 shall be counted as one of the 20 consecutive
quarters permitted in the maximum Extension Period permitted under Section 4.1.
ARTICLE V
COVENANTS
5.1. Additional Covenants of the Company. In addition to the covenants
of the Company set forth in Article Ten of the Base Indenture, for the benefit
of the Holders of the Debentures:
(a) The Company covenants and agrees (i) to maintain directly or
indirectly 100% ownership of the Common Securities; provided that any successors
or assigns of the Company permitted by the Base Indenture may succeed to the
Company's ownership of the Common Securities, (ii) not to voluntarily terminate,
wind-up or liquidate the Trust, except (A) in connection with a distribution of
the Debentures to the holders of the Trust Preferred Securities in liquidation
of the Trust or (B) in connection with any merger, consolidation or amalgamation
of the Trust permitted by the Trust Agreement, and (iii) to use its reasonable
efforts, consistent with the terms and provisions of the Trust Agreement, to
cause the Trust to remain classified as a grantor trust for United States
Federal income tax purposes.
(b) The Company covenants and agrees that if and so long as (i) the
Trustee is the Holder of all the Debentures on behalf of the Trust and (ii) the
Company has elected, and has not revoked such election, to pay Additional Sums,
the Company shall pay to the Trust the Additional Sums in respect of the
Preferred Securities and Common Securities.
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ARTICLE VI
EVENTS OF DEFAULT
6.1. Events of Default. With respect to the Debentures issued under
this Supplemental Indenture, Section 501 of the Base Indenture is hereby
replaced in its entirety as follows:
"Event of Default" means any one of the following events (whatever the
reason for such Event of Default and whether or not it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) default in the payment of any interest upon the Debentures when
such interest becomes due and payable, and continuance of such default for a
period of 30 days, except during a during an Extension Period; or
(b) default in the payment of the principal of the Debentures when they
become due and payable at their Maturity; or
(c) default in the performance of, or breach of, any covenant of the
Company in the Indenture (other than a covenant a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with or which
has been expressly included in the Indenture solely for the benefit of a series
of Securities other than the Debentures), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least a majority in principal amount of the Outstanding
Debentures a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default" hereunder;
or
(d) the Company or any Significant Subsidiary 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
(e) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that: (i) is for relief against the Company or any
Significant Subsidiary in an involuntary case, (ii) appoints a Custodian of the
Company or any Significant Subsidiary or for all or substantially all of either
of its property, or (iii) orders the liquidation of the Company or any
Significant Subsidiary, and the order or decree remains unstayed and in effect
for 90 days.
ARTICLE VII
SUBORDINATION OF DEBENTURES
Article Fourteen of the Base Indenture shall read as follows with
respect to Debentures issued under this Supplemental Indenture:
14.1. Agreement to Subordinate. Each Holder of Debentures covenants and
agrees by its acceptance thereof, that the obligation of the Company to make any
payment on account of
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the principal of and interest on the Debentures (the "Obligations") shall be
subordinate and junior in right of payment to the Company's obligations to the
holders of Senior Indebtedness of the Company.
(a) In the case of any bankruptcy, insolvency, receivership,
conservatorship, reorganization, readjustment of debt, marshaling of assets and
liabilities or similar proceedings or any dissolution, liquidation or winding-up
of or relating to the Company as a whole, whether voluntary or involuntary, all
obligations of the Company due or to become due to holders of Senior
Indebtedness of the Company shall be entitled to be paid in full, in cash or
other permitted consideration, or otherwise provided for, before any payment of
the Obligations shall be made by the Company.
(b) In the event and during the continuation of any default beyond any
grace period in the payment of principal of or interest on or any other monetary
amounts due any Senior Indebtedness, or in the event that any event of default
with respect to any Senior Indebtedness shall have occurred and be continuing
and shall have resulted in such Senior Indebtedness becoming or being declared
due and payable prior to the date on which it would otherwise have become due
and payable, unless and until such event of default shall have been cured,
waived or remedied or shall have ceased to exist and such acceleration shall
have been rescinded or annulled or all amounts due on such Senior Indebtedness
are paid in full in cash or other permitted consideration, or otherwise provided
for, then no payment of the Obligations shall be made by the Company.
14.2. When Distribution Must be Paid Over. In the event that the
Trustee or any Holder of Debentures receives from the Company any payment of any
Obligations at a time when the Trustee or such Holder of Debentures, as
applicable, has actual knowledge that such payment is prohibited by Section
14.1(a) or (b) hereof, such payment shall be held by the Trustee or such Holder
of Debentures in trust for the benefit of, and shall be paid forthwith over and
delivered upon written request to, the holders of Senior Indebtedness of the
Company, as their interests may appear, or their agent, trustee or
representative (a "Representative") under the indenture or other agreement (if
any) pursuant to which Senior Indebtedness of the Company may have been issued,
as their respective interests may appear, for application to the payment of all
obligations with respect to Senior Indebtedness of the Company remaining unpaid
to the extent necessary to pay such obligations in full in accordance with their
terms, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Indebtedness of the Company.
With respect to the holders of Senior Indebtedness of the Company, the
Trustee undertakes to perform only such obligations on the part of the Trustee
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of Senior Indebtedness of the Company
shall be read into this Indenture against the Trustee. The Trustee shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness of the
Company, and shall not be liable to any such holders if the Trustee shall pay
over or distribute to or on behalf of Holders of Debentures or the Company or
any other Person money or assets to which any holders of Senior Indebtedness of
the Company shall be entitled by virtue of this Article, except if such payment
is made as a result of the willful misconduct or gross negligence of the
Trustee.
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14.3. Notice By Company. The Company shall promptly notify the Trustee
of any facts known to the Company that would cause a payment of any Obligations
to violate this Article, but failure to give such notice shall not affect the
subordination of the Debentures to the Senior Indebtedness of the Company as
provided in this Article.
14.4. Subrogation. After all obligations with respect to Senior
Indebtedness of the Company are paid in full, and until the Debentures are paid
in full, Holders of Debentures shall be subrogated to the rights of holders of
Senior Indebtedness of the Company to receive distributions applicable to Senior
Indebtedness of the Company to the extent that distributions otherwise payable
to the Holders of Debentures have been applied to the payment of Senior
Indebtedness of the Company. A distribution made under this Article to holders
of Senior Indebtedness of the Company that otherwise would have been made to
Holders of Debentures is not, as between the Company and Holders of Debentures,
a payment by the Company on the Securities.
14.5. Relative Rights. This Article defines the relative rights of
Holders of Debentures and holders of Senior Indebtedness of the Company. Nothing
in this Indenture shall:
(1) impair, as between the Company and Holders of Debentures,
the obligation of the Company, which is absolute and unconditional, to
pay principal of and interest on the Debentures in accordance with
their terms;
(2) affect the relative rights of Holders of Debentures and
creditors of the Company other than their rights in relation to holders
of Senior Indebtedness of the Company; or
(3) prevent the Trustee or any Holder of Debentures from
exercising its available remedies upon an Event of Default, subject to
the rights of holders and owners of Senior Indebtedness of the Company
to receive distributions and payments otherwise payable to Holders of
Debentures.
If the Company fails because of this Article to pay principal of or
interest on a Debenture on the due date, unless during an Extension Period in
accordance with Section 4.1 of Supplemental Indenture No. 1, the failure is
still an Event of Default.
14.6. Subordination May Not Be Impaired by Company. No right of any
holder of Senior Indebtedness of the Company to enforce the subordination of the
Debentures shall be impaired by any act or failure to act by the Company or any
Holder of Debentures or by the failure of the Company or any Holder of
Debentures to comply with this Indenture.
14.7. Distribution or Notice to Representative. Whenever a distribution
is to be made or a notice given to holders of Senior Indebtedness of the
Company, the distribution may be made and the notice given to their
Representative.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee and the Holders of Debentures shall be entitled to
rely upon any order or decree made by any court of competent jurisdiction or
upon any certificate of such Representative or of the liquidating trustee or
agent or other Person making any distribution to the Trustee or to the
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holders for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of the Senior Indebtedness of the Company and
other indebtedness of the Company, the amount or amounts thereof or payable
thereon, the amount or amounts paid or distributed thereon and all other facts
pertinent thereto or to this Article.
14.8. Authorization of Trustee to Effectuate Subordination of the
Debentures. Each Holder of Debentures, by its acceptance thereof, authorizes and
expressly directs the Trustee on its behalf to take such action as may be
necessary or appropriate to effectuate, as between the Holders of such
Debentures and the holders of Senior Indebtedness of the Company, the
subordination provided in this Article, and appoints the Trustee to act as the
Holders' of Debentures attorney-in-fact for any and all such purposes.
ARTICLE VIII
EFFECTIVENESS
This Supplemental Indenture shall be effective for all purposes as of
the date and time this Supplemental Indenture has been executed and delivered by
the Company and the Trustee in accordance with Article Nine of the Base
Indenture. As supplemented hereby, the Base Indenture is hereby confirmed as
being in full force and effect.
ARTICLE IX
MISCELLANEOUS
9.1. Separability. In the event any provisions of this Supplemental
Indenture shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof or any provision of the Indenture.
9.2. Supplemental Indenture Controls. To the extent that any terms of
this Supplemental Indenture or the Notes are inconsistent with the terms of the
Indenture, the terms of this Supplemental Indenture or the Notes shall govern
and supersede such inconsistent terms.
9.3. Governing Law. This Supplemental Indenture shall be governed by
and construed in accordance with the law of the State of New York.
9.4. Counterparts. This Supplemental Indenture may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Trustee have caused this
Supplemental Indenture to be executed as an instrument under seal in their
respective corporate names as of the date first above written.
SENIOR HOUSING PROPERTIES TRUST
By: /s/ David J. Hegarty
Name: David J. Hegarty
Title: President
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By: /s/ Paul D. Allen
Name: Paul D. Allen
Title: Vice President
EXHIBIT A
[FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE]
10.125% Junior Subordinated Notes due June 15, 2041
SENIOR HOUSING PROPERTIES TRUST
No. ___ $ ___
Senior Housing Properties Trust, a real estate investment trust duly
organized and existing under the laws of Maryland (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to
..................................., or registered assigns, the principal sum of
..................... Dollars on June 15, 2041.
Reference is hereby made to the further provisions of this Debenture
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
In Witness Whereof, the Company has caused this instrument to be duly
executed.
SENIOR HOUSING PROPERTIES TRUST
By:_____________________________
Name:
Title:
Dated: _______
This is one of the Debentures of the series designated therein referred to in
the within-mentioned Indenture.
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By:__________________________________
Name:
Title:
[FORM OF REVERSE OF THE JUNIOR SUBORDINATED DEBENTURE]
SENIOR HOUSING PROPERTIES TRUST
10.125% Junior Subordinated Debentures due June 15, 2041
Capitalized terms used herein have the meanings assigned to them in the
Indenture (as defined below) unless otherwise indicated.
1. Indenture. The Company issued its 10.125% Junior Subordinated
Debentures due June 15, 2041 (the "Debentures") as part of a series issued under
a Junior Subordinated Indenture dated as of June 21, 2001 and a Supplemental
Indenture No. 1 dated as of June 21, 2001 (collectively, the "Indenture") each
between the Company and State Street Bank and Trust Company, as Trustee (the
"Trustee"). The terms of the Debentures include those stated in the Indenture
and those made a part of the Indenture by reference to the Trust Indenture Act
of 1939 as in effect on the date of the Indenture. The Debentures are subject to
all such terms, and the Holders of the Debentures are referred to the Indenture
and the Trust Indenture Act of 1939 for a statement of such terms. The terms of
the Indenture shall govern any inconsistencies between the Indenture and the
Debentures. The Debentures are unsecured subordinated general obligations of the
Company. The Debentures issued pursuant to said Supplemental Indenture No. 1 are
in the initial aggregate principal amount of up to $29,639,200, subject to the
right of the Company set forth in the Indenture to reopen the series which
comprises the Debentures.
2. Interest. Senior Housing Properties Trust, a Maryland real estate
investment (the "Company") promises to pay interest on the principal amount of
this Debenture at the rate and in the manner specified below.
This Debenture will bear interest at the rate of 10.125% per annum (the
"Coupon Rate") from and including June 21, 2001 until the principal thereof
becomes due and payable, and will bear interest on any overdue principal at the
Coupon Rate and (to the extent that payment of such interest is enforceable
under applicable law) on any overdue installment of interest at the Coupon Rate
("Additional Interest") until paid, compounded quarterly, payable (subject to
the provisions of the Indenture) quarterly in arrears on the 15th day of
September, December, March and June of each year (each, an "Interest Payment
Date"), commencing on September 15, 2001 to the Person in whose name such
Debenture is registered at the close of business on the Record Date next
preceding such Interest Payment Date.
The "Record Date" for payment of interest will be one Business Day
before the Interest Payment Date, unless such Debenture is registered to a
holder other than the Property Trustee or a nominee of the Depositary, in which
case the Record Date for payment of interest will be the fifteenth calendar day
before the applicable Interest Payment Date, whether or not a Business Day.
Until liquidation, if any, of the Trust, the Debentures will be held in the name
of the Property Trustee in trust for the benefit of the holders of the Trust
Securities.
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable on the
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Debentures is not a Business Day, then payment of interest 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), with the same force and
effect as if made on the date such payment was originally payable.
THE INDEBTEDNESS OF THE COMPANY EVIDENCED BY THIS DEBENTURE, INCLUDING
THE PRINCIPAL HEREOF AND INTEREST HEREON, IS, TO THE EXTENT AND IN THE MANNER
SET FORTH IN THE INDENTURE, SUBORDINATE AND JUNIOR IN RIGHT OF PAYMENT TO THE
PRIOR PAYMENT IN FULL IN CASH OR OTHER PERMITTED CONSIDERATION OF THE COMPANY'S
OBLIGATIONS TO HOLDERS OF SENIOR INDEBTEDNESS OF THE COMPANY. EACH HOLDER OF
THIS DEBENTURE, BY ACCEPTANCE HEREOF, (A) AGREES TO AND SHALL BE BOUND BY SUCH
PROVISIONS OF THE INDENTURE AND ALL OTHER PROVISIONS OF THE INDENTURE, (B)
AUTHORIZES AND DIRECTS THE TRUSTEE ON HIS BEHALF TO TAKE SUCH ACTION AS MAY BE
NECESSARY OR APPROPRIATE TO EFFECTUATE THE SUBORDINATION SO PROVIDED AND (C)
APPOINTS THE TRUSTEE HIS ATTORNEY-IN-FACT FOR ANY AND ALL SUCH PURPOSES.
3. Extension of Interest Payment Period. So long as no Event of Default
under the Indenture has occurred and is continuing, the Company shall have the
right, at any time during the term of the Debentures, from time to time to defer
the payment of interest and Additional Sums, if any, by extending the interest
payment period of such Debenture for a period not exceeding 20 consecutive
quarters (an "Extension Period"). No Extension Period shall extend beyond the
Stated Maturity of the Debentures. To the extent permitted by applicable law,
accrued and unpaid interest and Additional Sums, the payment of which has been
deferred because of an Extension Period imposed pursuant to the Indenture, will
bear Additional Interest compounded quarterly. At the end of the Extension
Period, the Company shall pay all interest then accrued and unpaid on the
Debentures, including any Additional Interest and Additional Sums, if
applicable, to the holders of the Debentures in whose names the Debentures are
registered in the Register on the first Record Date preceding the end of the
Extension Period.
Before the termination of any Extension Period, the Company may elect
to (i) shorten the Extension Period or (ii) further extend such Extension
Period, provided that such period together with all such further extensions
thereof shall not exceed 20 consecutive quarters, or extend beyond the Stated
Maturity. At any time following the termination of any Extension Period and upon
the payment of any accrued and unpaid Additional Interest and Additional Sums,
if applicable, then due, the Company may elect to begin a new Extension Period,
subject to the foregoing requirements. No interest or Additional Sums shall be
due and payable during an Extension Period, except at the end thereof.
Subject to certain exceptions set forth in the Indenture, during any
such Extension Period, the Company shall not (i) declare or pay any dividends or
distributions on, or redeem, purchase, acquire or make a liquidation payment
with respect to, any of the Company's shares of beneficial interest, (ii) make
any payment of principal of or interest or premium, if any, on, or repay,
repurchase or redeem any indebtedness or debt securities of the Company that
rank on a parity with or junior to the Debentures in right of payment or (iii)
make any guarantee payments with respect to any guarantee by the Company of
indebtedness or debt securities of any Subsidiary of
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the Company if such guarantee ranks on parity with or junior to the Debentures
in right of payment.
The Company shall give notice of its election to begin, shorten or
extend an Extension Period as provided in the Indenture.
4. Tax Event of Investment Company Event Redemption. If a Tax Event or
Investment Company Event (either a "Special Event") shall occur and be
continuing, the Company may redeem the Debenture at any time within 180 days
following the occurrence of that Special Event, in whole but not in part, at a
redemption price equal to 100% of the principal amount of the Debentures plus
accrued and unpaid interest thereon to the Redemption Date.
5. Optional Redemption. The Company shall have the option to redeem the
Debentures at any time on or after June 15, 2006, in whole or in part, at a
redemption price equal to 100% of the principal amount of the Debentures plus
accrued and unpaid interest thereon to the Redemption Date.
6. Denominations, Transfer and Exchange. The Debentures may be
transferred or exchanged only in minimum denominations of $25 and integral
multiples of $25 in excess thereof, and any attempted transfer, sale or other
disposition of Debentures in a denomination of less than $25 shall be deemed to
be void and of no legal effect whatsoever, and any such transferee shall be
deemed not to be the holder of such Debentures for any purpose, including but
not limited to the receipt of payments in respect of such Debentures and such
transferee shall be deemed to have no interest whatsoever in such Debentures.
7. Authentication. This Debenture shall not be valid until
authenticated by the manual signature of the Trustee or an authenticating agent.
8. Persons Deemed Owners. The Company, the Trustee, and any agent of
the Company or Trustee may deem and treat the Person in whose name the
Debentures are registered as the absolute owner for purposes of receiving
payment of principal and interest.
9. Defaults and Remedies. In the case of an Event of Default with
respect to the Debentures shall have occurred and be continuing, the principal
hereof may be declared, and upon such declaration shall become, due and payable,
in the manner, with the effect and subject to the provisions provided for in the
Indenture.
10. Actions of Holders. The Indenture contains provisions permitting
the holders of not less than a majority in principal amount of the Debentures,
subject to certain provisions and exceptions as provided for in the Indenture,
to (a) waive certain past Events of Defaults and their consequences and (b)
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or for exercising any trust power conferred on the
Trustee.
11. Governing Law. This Debenture shall be governed by, and construed
in accordance with, the laws of the State of New York.
12. No Personal Liability. THE ARTICLES OF AMENDMENT AND RESTATEMENT
ESTABLISHING SENIOR HOUSING PROPERTIES TRUST DATED
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SEPTEMBER 20, 1999, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE
"DECLARATION"), IS DULY FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "SENIOR HOUSING
PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS
TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER,
SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL
LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE
COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO
THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY
OBLIGATION.
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FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
_______________________________________________________________________________.
(please insert Social Security or other identifying number of assignee)
_______________________________________________________________________________.
_______________________________________________________________________________.
_______________________________________________________________________________.
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing
_______________________________________________________________________________.
_______________________________________________________________________________.
_______________________________________________________________________________.
agent to transfer said Debenture on the books of the Company, with full power of
substitution in the premises.
Dated: __________________ __, ____
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular without
alteration or enlargement, or any change whatever.
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