EXHIBIT 4.2
EXECUTION COPY
FIRST SUPPLEMENTAL INDENTURE
This FIRST SUPPLEMENTAL INDENTURE (this "Supplemental Indenture")
----------------------
dated as of August 11, 1998, among HARBORSIDE HEALTHCARE CORPORATION, a Delaware
corporation ("Harborside"), the subsidiaries of Harborside listed on the
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signature pages hereto, as guarantors (collectively, the "Initial Guarantors"),
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and UNITED STATES TRUST COMPANY OF NEW YORK, as trustee under the indenture
referred to below (the "Trustee").
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R E C I T A L S
WHEREAS, HH Acquisition Corp., a Delaware corporation ("MergerCo"),
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has heretofore executed and delivered to the Trustee an Indenture dated as of
July 31, 1998 (the "Indenture"), providing for the initial issuance of
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$170,000,000 million in aggregate principal amount at maturity of its 11%
Senior Subordinated Discount Notes due 2008 (the "Securities");
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WHEREAS, MergerCo has merged with and into Harborside and, in
connection therewith, Harborside has assumed by operation of law all of
MergerCo's debts, liabilities, duties and obligations, including MergerCo's
obligations in respect of the Securities and under the Indenture;
WHEREAS, each of the Initial Guarantors is required pursuant to the
Indenture to become a party thereto and as Guarantors under the Indenture to
guarantee the obligations of MergerCo in respect of the Securities and under the
Indenture;
WHEREAS, Harborside desires by this Supplemental Indenture, pursuant
to and as contemplated by Sections 5.01 and 9.01 of the Indenture, to expressly,
irrevocably and unconditionally assume the covenants, agreements, obligations
and undertakings of MergerCo in the Indenture and under the Securities; and
WHEREAS, all conditions and requirements necessary to make each of
this Supplemental Indenture and the Securities valid, binding and legal
instruments in accordance with their respective terms upon Harborside, and each
of this Supplemental Indenture and each of the Security Guarantees valid,
binding and legal instruments in accordance with their terms upon each of the
Initial Guarantors, have been performed and fulfilled by the applicable parties
hereto and the execution and delivery thereof have been in all respects duly
authorized by the applicable parties hereto.
WHEREAS, MergerCo and Harborside authorize the Trustee to cancel the
11% Senior Subordinated Discount Notes due 2008 of MergerCo and to authenticate
the 11% Senior Subordinated Discount Notes due 2008 of Harborside, as guaranteed
by the Initial Guarantors.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, each
party agrees, for the benefit of the others and for the equal and ratable
benefit of the holders of the Notes as follows:
ARTICLE ONE
DEFINITIONS
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SECTION 1.01. Definitions. For all purposes of this Supplemental
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Indenture, except as otherwise herein expressly provided or unless the context
otherwise requires: (i) the terms and expressions used herein shall have the
same meanings as corresponding terms and expressions used in the Indenture; and
(ii) the words "herein," "hereof" and "hereby" and other words of similar import
used in this Supplemental Indenture refer to this Supplemental Indenture as a
whole and not to any particular section hereof.
ARTICLE TWO
ASSUMPTION OF OBLIGATIONS AND AGREEMENT TO GUARANTEE
----------------------------------------------------
SECTION 2.01. Assumption of Obligations of MergerCo. (a) Harborside
-------------------------------------
hereby expressly, irrevocably and unconditionally assumes each and every
covenant, agreement, obligation and undertaking of MergerCo in the Indenture as
if Harborside had been named the Company in the Indenture and the original
issuer of the Securities, and also hereby expressly, irrevocably and
unconditionally assumes each and every covenant, agreement, obligation and
undertaking of MergerCo in each Security outstanding on the date of this
Supplemental Indenture.
(b) Promptly following the execution and delivery of this
Supplemental Indenture, the Trustee shall, upon the written order of Harborside
in the form of an Officers' Certificate of Harborside, authenticate and deliver
Initial Securities substantially in the form of Exhibit A hereto in exchange for
the outstanding Initial Securities.
SECTION 2.02. Security Guarantee of the Initial Guarantors. Each of
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the Initial Guarantors hereby expressly, irrevocably and unconditionally agrees,
(i) that its shall be a "Guarantor" under the Indenture and shall, jointly and
severally with all other Guarantors, guarantee Harborside's obligations under
the Securities and the Indenture on the terms and subject to the conditions set
forth in Articles XI and XII of the Indenture and (ii) to be bound by all other
applicable provisions of the Indenture and the Securities.
SECTION 2.03. Replacement of Exhibits to Indenture. Exhibits A, B, C
------------------------------------
and D to the Indenture are hereby deleted and replaced in their entirety by
Exhibits A, B, C and D, respectively, hereto.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
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SECTION 3.01. Effect of Supplemental Indenture. Upon the execution
---------------------------------
and delivery of this Supplemental Indenture by Harborside, each of the Initial
Guarantors and the Trustee, the Indenture shall be supplemented in accordance
herewith, and this Supplemental Indenture shall form a part of the Indenture for
all purposes, and every Holder of a Security heretofore or hereafter
authenticated and delivered under the Indenture shall be bound thereby.
SECTION 3.02. Indenture Remains in Full Force and Effect. Except as
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expressly amended and supplemented hereby, the Indenture is in all respects
ratified and confirmed and all terms, conditions and provisions of the Indenture
shall remain in full force and effect.
SECTION 3.03. Indenture and Supplemental Indenture Construed
----------------------------------------------
Together. This Supplemental Indenture is an indenture supplemental to and in
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implementation of the Indenture, and the Indenture and this Supplemental
Indenture shall henceforth be read and construed together.
SECTION 3.04. Conflict with Trust Indenture Act. If any provision of
---------------------------------
this Supplemental Indenture limits, qualifies or conflicts with any provision of
the Trust Indenture Act that is required under such Act to be part of and govern
any provision of this Supplemental Indenture, the provision of such Act shall
control. If any provision of this Supplemental Indenture modifies or excludes
any provision of the Trust Indenture Act that may be so modified or excluded,
the provision of such Act shall be deemed to apply to the Indenture as so
modified or to be excluded by this Supplemental Indenture, as the case may be.
SECTION 3.05. Separability Clause. In case any provision in this
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Supplemental Indenture 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 3.06. Effect of Headings. The Article and Section headings
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herein are for convenience only and shall not affect the construction hereof.
SECTION 3.07. Benefits of Supplemental Indenture, Etc. Nothing in
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this Supplemental Indenture, the Indenture or the Securities express or implied,
shall give to any Person, other than the parties hereto and thereto and their
successors hereunder and thereunder and the Holders, any benefit of any legal or
equitable right, remedy or claim under the Indenture, this Supplemental
Indenture or the Securities.
SECTION 3.08. Successors and Assigns. All covenants and agreements
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in this Supplemental Indenture by Harborside and by each Initial Guarantor shall
bind their respective successors and assigns, whether so expressed or not.
SECTION 3.09. Certain Duties and Responsibilities of Trustee. In
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entering into this Supplemental Indenture, the Trustee shall be entitled to the
benefit of every provision of the Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee, whether or not
elsewhere herein so provided. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Supplemental
Indenture or for or in respect of the recitals contained herein, all of which
recitals are made solely by the Company.
SECTION 3.10. Governing Law. This Supplemental Indenture shall be
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governed by and construed in accordance with the laws of the State of New York.
SECTION 3.11. Counterparts. This Supplemental Indenture may be
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executed in counterparts, each of which, when so executed, shall be deemed to be
an original, but all such counterparts shall together constitute but one and the
same instrument.
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the parties have caused this Supplemental
Indenture to be duly executed as of the date first written above.
HARBORSIDE HEALTHCARE CORPORATION
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee
By: /s/ James E. Logan
___________________________________________
Name: James E. Logan
Title: Vice President
HARBORSIDE HEALTHCARE LIMITED
PARTNERSHIP
By: KHI CORPORATION, its general partner
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
BELMONT NURSING CENTER CORP.
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
ORCHARD RIDGE NURSING CENTER
CORP.
By: /s/ Stephen L. Guillard
____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
OAKHURST MANOR NURSING CENTER
CORP.
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
RIVERSIDE RETIREMENT LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE TOLEDO LIMITED
PARTNERSHIP
By: HARBORSIDE TOLEDO CORP.,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE CONNECTICUT LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE OF FLORIDA LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE OF OHIO LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE HEALTHCARE BALTIMORE
LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE OF CLEVELAND LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE OF DAYTON LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE MASSACHUSETTS LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE RHODE ISLAND LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE NORTH TOLEDO LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE HEALTHCARE ADVISORS
LIMITED PARTNERSHIP
By: KHI CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE TOLEDO LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
KHI CORPORATION
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE ACQUISITION LIMITED
PARTNERSHIP IV
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
_____________________________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE ACQUISITION LIMITED
PARTNERSHIP V
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Excutive Officer
HARBORSIDE ACQUISITION LIMITED
PARTNERSHIP VI
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Excutive Officer
HARBORSIDE ACQUISITION LIMITED
PARTNERSHIP VII
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Excutive Officer
HARBORSIDE ACQUISITION LIMITED
PARTNERSHIP VIII
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Excutive Officer
HARBORSIDE ACQUISITION LIMITED
PARTNERSHIP IX
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE ACQUISITION LIMITED
PARTNERSHIP X
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
SAILORS, INC.
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
NEW JERSEY HARBORSIDE CORP.
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
BRIDGEWATER ASSISTED LIVING LIMITED
PARTNERSHIP
By: NEW JERSEY HARBORSIDE
CORPORATION, its general partner
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
MARYLAND HARBORSIDE CORP.
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE HOMECARE LIMITED
PARTNERSHIP
By: KHI CORPORATION, its general partner
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE REHABILITATION LIMITED
PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE HEALTHCARE
NETWORK LIMITED PARTNERSHIP
By: HARBORSIDE HEALTH I CORPORATION,
its general partner
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
HARBORSIDE HEALTH I CORPORATION
By: /s/ Stephen L. Guillard
___________________________
Name: Stephen L. Guillard
Title: President and Chief Executive Officer
EXHIBIT A
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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR
SOLD WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S.
PERSONS EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION
HEREOF, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT
A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT, (2) AGREES THAT IT
WILL NOT, WITHIN THE TIME PERIOD REFERRED TO UNDER RULE 144(k) UNDER THE
SECURITIES ACT AS IN EFFECT ON THE DATE OF TRANSFER OF THIS NOTE, RESELL OR
OTHERWISE TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY
THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE
144A UNDER THE SECURITIES ACT, (C) INSIDE THE UNITED STATES TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(a)(1), (2), (3)
OR (7) OF REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH
TRANSFER, FURNISHES TO THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER OF
THIS NOTE (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND,
IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE ACCRETED VALUE OF NOTES AT
THE TIME OF TRANSFER OF LESS THAN $250,000, AN OPINION OF COUNSEL
ACCEPTABLE TO THE COMPANY THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT, (D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE SECURITIES ACT, (E) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT
(IF AVAILABLE) OR (F) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THIS NOTE WITHIN THE TIME
PERIOD REFERRED TO ABOVE, THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE TRUSTEE. IF THE PROPOSED TRANSFEREE IS AN
INSTITUTIONAL ACCREDITED INVESTOR, THE HOLDER MUST, PRIOR TO SUCH TRANSFER,
FURNISH TO THE TRUSTEE AND THE COMPANY SUCH CERTIFICATIONS, LEGAL OPINIONS
OR OTHER INFORMATION AS EITHER OF THEM MAY REASONABLY REQUIRE TO CONFIRM
THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY
A-2
REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE CONTAINS A PROVISION
REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS NOTE IN
VIOLATION OF THE FOREGOING RESTRICTIONS.
[For Global Securities only:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, TO THE COMPANY 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 ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT
NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
SECTION 2.08 OF THE INDENTURE.]
A-3
[FORM OF FACE OF SECURITY]
HARBORSIDE HEALTHCARE CORPORATION
11% SENIOR SUBORDINATED DISCOUNT NOTE DUE 2008
No. ___ CUSIP No. _________
$____________
The following information is supplied for purposes of Sections 1273 and
1275 of the Internal Revenue Code:
Issue Date: [__________],____]
Original issue discount under Section
Yield to maturity for period from 1273 of the Internal Revenue Code
Issue Date to [__________,_____]: (for each $1,000 principal amount):
[____]%, compounded semi-annually on $[_______]
[__________ and _______], commencing
[_________, ____] (computed without Issue Price (for each $1,000
giving effect to the additional principal amount): $[_____]
payments of interest in the event
the issuer fails to commence the
exchange offer or cause the
registration statement to be
declared effective, each as
described on the reverse hereof)
HARBORSIDE HEALTHCARE CORPORATION, a Delaware corporation (the
"Company"), promises to pay to _______________, or registered assigns, the
principal sum of _____________________ ($________________) on August 1, 2008.
Interest Payment Dates: February 1 and August 1, commencing February 1, 2003
Regular Record Dates: January 15 and July 15
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Dated:
HARBORSIDE HEALTHCARE CORPORATION
By: _______________________________________
Name:
Title:
A-4
TRUSTEE'S CERTIFICATE OF AUHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By: __________________________________________
Authorized Signatory
A-5
[FORM OF REVERSE SIDE OF SECURITY]
11% Senior Subordinated Discount Note due 2008
1. Interest
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HARBORSIDE HEALTHCARE CORPORATION, a Delaware corporation (the
"Company"), promises to pay interest on the principal amount of this Security at
the rate per annum shown above and shall pay Liquidated Damages, if any, payable
pursuant to the relevant Registration Rights Agreement.
The Company will pay interest and Liquidated Damages, if any,
semiannually on August 1 and February 1 of each year commencing February 1,
2004; provided that no interest shall accrue on the principal amount of this
--------
Security prior to August 1, 2003 (the "Full Accretion Date"), and no interest
shall be paid on this Security prior to the Full Accretion Date except for
Liquidated Damages, if any, payable pursuant to the relevant Registration Rights
Agreement. The Holder of this Security is entitled to the benefit of such
Registration Rights Agreement.
Interest will be computed on the basis of a 360-day year of twelve 30-
day months. The Company shall pay interest on overdue principal at the rate
borne by the Securities, and it shall pay interest on overdue installments of
interest at the same rate to the extent lawful.
2. Method of Payment
-----------------
The Company will pay interest (except defaulted interest) on and
Liquidated Damages, if any, in respect of the Securities to the Persons who are
registered holders of Securities at the close of business on the January 15 or
July 15 next preceding the interest payment date even if Securities are
cancelled after the record date and on or before the interest payment date.
Holders must surrender Securities to a Paying Agent to collect principal
payments. The Company will pay principal and interest in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may pay principal and interest by check
payable in such money or by wire transfer of federal funds.
3. Paying Agent and Registrar
--------------------------
Initially, UNITED STATES TRUST COMPANY OF NEW YORK (the "Trustee")
will act as Paying Agent and Registrar. The Company may appoint and change any
Paying Agent, Registrar or co-registrar without notice to the Holders. The
Company or any domestically organized Wholly Owned Restricted Subsidiary may act
as Paying Agent, Registrar or co-registrar.
A-6
4. Indenture
---------
The Company issued the Securities under an Indenture dated as of July
31, 1998 (the "Indenture"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. (S)(S)
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77aaa-77bbbb) as in effect on the date of the Indenture (the "Act"). Terms
defined in the Indenture and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and the Act for a statement of
those terms.
The Securities are unsecured senior subordinated obligations of the
Company. Subject to the conditions set forth in the Indenture, the Company may
issue Additional Securities.
5. Optional Redemption
-------------------
Except as set forth in the next two paragraphs, the Securities may not
be redeemed at the Company's option prior to August 1, 2003. Thereafter, the
Securities will be subject to redemption at any time at the option of the
Company, in whole or in part, upon not less than 30 nor more than 60 days'
notice at the redemption prices (expressed as percentages of principal amount)
set forth below plus accrued and unpaid interest and Liquidated Damages thereon,
if any, to the applicable redemption date (subject to the right of Holders on
the relevant record date to receive interest due on the relevant interest
payment date), if redeemed during the twelve-month period beginning on August 1
of the years indicated below:
Redemption
Year Price
- ---- -----
105.500%
2003 103.667%
2004 101.883%
2005 100.000%
2006 and thereafter
In addition, at any time and from time to time, prior to August 1,
2001, the Company may redeem up to 35% of the sum of (i) the aggregate principal
amount at maturity of Securities and (ii) the aggregate principal amount at
maturity of any Additional Securities at a redemption price of 111% of the
Accreted Value thereof (determined at the redemption date) plus Liquidated
Damages thereon, if any, to the redemption date, with the net cash proceeds
received by the Company of a public offering of common stock of the Company,
provided that at least 65% of the sum of (i) the aggregate principal amount at
- --------
maturity of Securities and (ii) the aggregate principal amount at maturity of
any Additional Securities remains outstanding immediately after the occurrence
of such redemption; and provided, further, that such redemption shall occur
-------- -------
within 60 days of the date of the closing of such public offering.
A-7
At any time on or prior to August 1, 2003, the Securities may be
redeemed as a whole but not in part at the option of the Company upon the
occurrence of a Change of Control, upon not less than 30 nor more than 60 days'
prior notice (but in no event may any such redemption occur more than 90 days
after the occurrence of such Change of Control) mailed by first-class mail to
each Holder's registered address, at a redemption price equal to 100% of the
Accreted Value thereof (determined at the redemption date) plus the Applicable
Premium and Liquidated Damages thereon, if any, to the redemption date (subject
to the right of Holders on the relevant record date to receive interest due on
the relevant interest payment date).
6. Special Mandatory Redemption
----------------------------
In the event that the Merger is not consummated prior to the earlier
to occur of (i) January 10, 1999 and (ii) if it appears, in the sole judgment of
the Company, that the Merger shall not be consummated, the date on which notice
of same is delivered by the Company to the Escrow Agent and the Trustee, the
Company shall be required to redeem the Securities, in whole, on at least 15
days' prior written notice mailed by first class mail to each Holder's last
address as it appears in the Securities Register, at a redemption price equal to
101% of the Accreted Value plus Liquidated Damages, if any, of the Securities on
the date of repurchase to the redemption date.
7. Notice of Redemption
--------------------
Notice of redemption will be mailed by first-class mail at least 30
days (or in the case of a Special Mandatory Redemption described in paragraph 6
hereof, 15 days) but not more than 60 days before the redemption date to each
Holder of Securities to be redeemed at its registered address all in accordance
with the Indenture. If less than all of the Securities are to be redeemed at
any time, selection of Securities for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Securities are listed, or, if the Securities are not so
listed, on a pro rata basis, by lot or by such method as the Trustee shall deem
fair and appropriate; provided that no Securities in an aggregate principal
--------
amount at maturity of $1,000 or less shall be redeemed in part.
If money sufficient to pay the redemption price of and accrued
interest (if any) on all Securities (or portions thereof) to be redeemed on the
redemption date is deposited with the Paying Agent on or before the redemption
date and certain other conditions are satisfied, on and after such date interest
ceases to accrue on such Securities (or such portions thereof) called for
redemption.
8. Repurchase at the Option of the Holder
--------------------------------------
Upon a Change of Control, any Holder of Securities will have the
right, subject to certain conditions set forth in the Indenture, to cause the
Company to repurchase all or any part of
A-8
the Securities of such Holder at a purchase price equal to 101% of the aggregate
principal amount of the Securities to be repurchased plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date that is on or prior
to the date of repurchase) as provided in, and subject to the terms of, the
Indenture.
9. Subordination
-------------
The Securities are subordinated to Senior Debt of the Company, as
defined in the Indenture. To the extent provided in the Indenture, Senior Debt
of the Company must be paid before the Securities may be paid. The Company
agrees, and each Securityholder by accepting a Security agrees, to the
subordination provisions contained in the Indenture and authorizes the Trustee
to give it effect and appoints the Trustee as attorney-in-fact for such purpose.
10. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form without coupons in denominations
of $1,000 and whole multiples of $1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. Upon any registration of transfer
or exchange, the Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements or transfer documents and to pay any
taxes required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Securities selected for redemption
(except, in the case of a Security to be redeemed in part, the portion of the
Security not to be redeemed) or to transfer or exchange any Securities for a
period of 15 days prior to a selection of Securities to be redeemed or 15 days
before an interest payment date.
11. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the owner of
it for all purposes.
12. Unclaimed Money
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee or Paying Agent shall pay the money back to the
Company at its written request unless an abandoned property law designates
another Person. After any such payment, Holders entitled to the money must look
only to the Company and not to the Trustee for payment.
A-9
13. Discharge and Defeasance
------------------------
Subject to certain conditions set forth in the Indenture, the Company
at any time may terminate some or all of its obligations under the Securities
and the Indenture if the Company deposits with the Trustee money or Government
Obligations for the payment of principal and interest on the Securities to
redemption or maturity, as the case may be.
14. Amendment, Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in principal amount outstanding of the Securities
and (ii) any past default or noncompliance with any provision of the Indenture
may be waived with the consent of the Holders of a majority in principal amount
then outstanding of the Securities. Subject to certain exceptions set forth in
the Indenture, without the consent of any Securityholder, the Company and the
Trustee may amend the Indenture or the Securities to cure any ambiguity, defect
or inconsistency, to provide for uncertificated Securities in addition to or in
place of certificated Securities (provided that the uncertificated Securities
are issued in registered form for purposes of Section 163(f) of the Code, or in
a manner such that the uncertificated Securities are described in Section
163(f)(2)(B) of the Code), to provide for the assumption of the Company's or any
Guarantor's obligations to Holders of Securities in the case of a merger,
consolidation or sale of assets, to release any Security Guarantee or collateral
in accordance with the provisions of the Indenture or Pledge Agreement, as the
case may be, to provide for additional Guarantors, to make any change that would
provide any additional rights or benefits to the Holders of Securities or that,
as determined by the Board of Directors in good faith, does not have a material
adverse effect on the legal rights under this Indenture of any such Holder, to
comply with requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the TIA or to provide for the issuance of
Additional Securities in compliance with Article II and Section 4.03 of the
Indenture.
15. Defaults and Remedies
---------------------
Under the Indenture, an Event of Default occurs if: (i) the Company
defaults in any payment of interest on, or Liquidated Damages with respect to,
any Security when the same becomes due and payable, whether or not such payment
shall be prohibited by Article X of the Indenture, and such default continues
for a period of 30 days; (ii) the Company defaults in the payment of the
principal of or premium, if any, on the Securities, whether or not such payment
shall be prohibited by Article X of the Indenture; (iii) the Company fails to
comply with other covenants and agreements in the Indenture, subject to
applicable grace periods as set forth in the Indenture; (iv) certain
accelerations (including failure to pay within any grace period after final
maturity) of other Debt of the Company or any Restricted Subsidiary that is a
Significant Subsidiary occur if the amount
A-10
accelerated (or so unpaid) exceeds $15,000,000; (v) certain events of
bankruptcy, insolvency or reorganization with respect to the Company and any
Restricted Subsidiary which is a Significant Subsidiary; (vi) certain judgments
or decrees for the payment of money in excess of $15,000,000 against the Company
or any Restricted Subsidiary that is a Significant Subsidiary; and (vii) except
as is permitted by the Indenture, a Security Guarantee by a Guarantor that is a
Significant Subsidiary shall be held in any judicial proceeding to be
unenforceable or invalid or shall for any reason cease to be in full force and
effect or any Guarantor, or any Person acting on behalf of any Guarantor, denies
or disaffirms its obligations under the Indenture or its Security Guarantee. If
an Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the Securities may declare all the Securities
to be due and payable.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Securities unless it receives reasonable indemnity or security. Subject
to certain limitations, Holders of a majority in principal amount of the
Securities may direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Securityholders notice of any continuing Default
(except a Default in payment of principal, premium, if any, or interest) if and
so long as a committee of its trust officers in good faith determines that
withholding notice is in the interest of the Holders.
16. Trustee Dealings with the Company
---------------------------------
Subject to certain limitations imposed by the Act, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
17. No Personal Liability of Directors, Officers, Employees and Stockholders
------------------------------------------------------------------------
No director, officer, employee, incorporator, stockholder or Affiliate
of the Company, as such, will have any liability for any obligations of the
Company under the Securities, the Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. No director,
officer, employee, incorporator, stockholder or Affiliate of any of the
Guarantors, as such, will have any liability for any obligations of the
Guarantors under the Security Guarantees, the Indenture or for any claim based
on, in respect of, or by reason of, such obligations or their creation. Each
Holder of Securities and Security Guarantees by accepting a Security and a
Security Guarantee waives and releases all such liabilities. The waiver and
release are part of the consideration for issuance of the Securities and the
Security Guarantees. Such waiver may not be effective to waive liabilities
under the federal securities laws and it is the view of the SEC that such a
waiver is against public policy.
A-11
18. Governing Law
-------------
THE SECURITIES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
----------------------------------------------------------------------
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES
- --------------------------------------------------------------------------------
OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER
- -----------------------------------------------------------------------------
JURISDICTION WOULD BE REQUIRED THEREBY.
- ---------------------------------------
19. Authentication
--------------
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Security.
20. Abbreviations
-------------
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
21. CUSIP Numbers
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and have directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
22. Guarantee
---------
The Company's obligations under the Securities are guaranteed on a
senior subordinated basis, jointly and severally, by the Guarantors.
A-12
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE TO THE SECURITYHOLDER A COPY OF THE INDENTURE WHICH HAS IN IT
THE TEXT OF THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO:
HARBORSIDE HEALTHCARE CORPORATION
470 ATLANTIC AVENUE
BOSTON, MASSACHUSETTS 02210
ATTENTION: CHIEF FINANCIAL OFFICER
A-13
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
- ----------------------------------
_________________________________________________________________________
Please print or typewrite name and address including zip code of assignee
_________________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing _____________________________________________ attorney to
transfer said Security on the books of the Company with full power of
substitution in the premises.
[THE FOLLOWING PROVISION TO BE INCLUDED ON
ALL SECURITIES OTHER THAN EXCHANGE SECURITIES,
UNLEGENDED OFFSHORE GLOBAL SECURITIES AND
UNLEGENDED OFFSHORE PHYSICAL SECURITIES]
In connection with any transfer of this Security occurring prior to
the date which is the earlier of (i) the date the Shelf Registration Statement
is declared effective or (ii) the end of the period referred to in Rule 144(k)
under the Securities Act, the undersigned confirms that without utilizing any
general solicitation or general advertising that:
[Check One]
---------
[_] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act of 1933 provided by Rule
144A thereunder.
or
--
[_] (b) this Security is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
A-14
If none of the foregoing boxes is checked, the Trustee or other Registrar shall
not be obligated to register this Security in the name of any Person other than
the Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.08 of the Indenture shall have
been satisfied.
Date:______________ _______________________________________________________
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
the within-mentioned instrument in every particular,
without alteration or any change whatsoever.
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933 and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:______________ _______________________________________________________
NOTICE: To be executed by an executive officer
A-15
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.06 or 4.08 of the Indenture, check the box:
[_] 4.06 Asset Sale [_] 4.08 Change of Control
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.06 or 4.08 of the Indenture, state the amount:
$__________.
Date: _______________ Your Signature: _____________________________________
(Sign exactly as your name appears on
the other side of the Security)
__________________
Tax I.D. number
Signature Guarantee: ______________________________________________
(Signature must be guaranteed by a participant
in a recognized signature guarantee medallion
program)
EXHIBIT B
---------
FORM OF CERTIFICATE
-------------------
________, ____
UNITED STATES TRUST COMPANY OF NEW YORK
114 West 47/th/ Street
New York, New York 10036
Attention: Corporate Trust Administration
Re: Harborside Healthcare Corporation (the "Company")
11% Senior Subordinated Securities due 2008 (the "Securities")
--------------------------------------------------------------
Dear Sirs:
This letter relates to U.S. $_______________ principal amount at
maturity of Securities represented by a Security (the "Legended Security") which
bears a legend outlining restrictions upon transfer of such Legended Security.
Pursuant to Section 2.02 of the Indenture dated as of July 31, 1998 (the
"Indenture") relating to the Securities, we hereby certify that we are (or we
will hold such securities on behalf of) a person outside the United States to
whom the Securities could be transferred in accordance with Rule 904 of
Regulation S promulgated under the U.S. Securities Act of 1933. Accordingly, you
are hereby requested to exchange the legended certificate for an unlegended
certificate representing an identical principal amount at maturity of
Securities, all in the manner provided for in the Indenture.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Holder]
By: _____________________________________________
Authorized Signature
EXHIBIT C
---------
[FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO NON-QIB ACCREDITED INVESTORS]
________, ____
UNITED STATES TRUST COMPANY OF NEW YORK
114 West 47/th/ Street
New York, New York 10036
Attention: Corporate Trust Administration
Re: Harborside Healthcare Corporation (the "Company")
11% Senior Subordinated Securities due 2008 (the "Securities")
--------------------------------------------------------------
Dear Sirs:
In connection with our proposed purchase of $__________________
aggregate principal amount at maturity of the Securities, we confirm that:
1. We understand that any subsequent transfer of the Securities is
subject to certain restrictions and conditions set forth in the Indenture dated
as of July 31, 1998 (the "Indenture") relating to the Securities and the
undersigned agrees to be bound by, and not to resell, pledge or otherwise
transfer the Securities except in compliance with such restrictions and
conditions and the Securities Act of 1933, amended (the "Securities Act").
2. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities may not be
offered or sold except as permitted in the following sentence. We agree, on our
own behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Securities within the time period referred to
in Rule 144(k) of the Securities Act, we will do so only (A) to the Company or
any subsidiary thereof, (B) in accordance with Rule 144A under the Securities
Act to a "qualified institutional buyer" (as defined therein), (C) to an
institutional "accredited investor" (as defined below) that, prior to such
transfer, furnishes (or has furnished on its behalf by a U.S. broker-dealer) to
you and to the Company a signed letter substantially in the form of this letter
and, if such transfer is in respect of an aggregate accreted value of Securities
at the time of transfer of less than $250,000, an opinion of counsel acceptable
to the Company that such transfer is in compliance with the Securities Act, (D)
outside the United States in accordance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from registration provided by Rule
144 under the Securities Act (if available) or (F) pursuant to an effective
registration statement under the Securities Act, and we further agree to provide
to any person purchasing any of the Securities from us a notice advising such
purchaser that resales of the Securities are restricted as stated herein.
C-2
3. We understand that, on any proposed resale of any Securities, we
will be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably require to
confirm that the proposed sale complies with the foregoing restrictions. We
further understand that the Securities purchased by us will bear a legend to the
foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Securities purchased by us for our own
account or for one or more accounts (each of which is an institutional
"accredited investor") as to each of which we exercise sole investment
discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By:______________________________________________________________
Authorized Signature
EXHIBIT D
---------
[FORM OF CERTIFICATE TO BE DELIVERED IN
CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S]
________, 19__
UNITED STATES TRUST COMPANY OF NEW YORK
114 West 47/th/ Street
New York, New York 10036
Attention: Corporate Trust Administration
Re: Harborside Healthcare Corporation (the "Company")
11% Senior Subordinated Securities due 2008 (the "Securities")
--------------------------------------------------------------
Dear Sirs:
In connection with our proposed sale of U.S.$__________________
aggregate principal amount at maturity of the Securities, we confirm that such
sale has been effected pursuant to and in accordance with Regulation S under the
Securities Act of 1933 and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) at the time the buy order was originated, the transferee was
outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States;
(3) no directed selling efforts have been made by us in the United
States in contravention of the requirements of Rule 903(b) or Rule 904(b)
of Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the U.S. Securities Act of 1933.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal
D-2
proceedings or official inquiry with respect to the matters covered hereby.
Terms used in this certificate have the meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By:_________________________
Authorized Signature