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EXHIBIT 4.7
FISCAL AGENCY AGREEMENT
dated as of
November 15, 1993
between
MEDITRUST
and
FLEET NATIONAL BANK,
as Fiscal Agent
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FISCAL AGENCY AGREEMENT, dated as of November 15, 1993, between MEDITRUST,
a business trust duly organized and validly existing under the laws of the
Commonwealth of Massachusetts (the "Company"), and Fleet National Bank, a
banking corporation duly organized and validly existing under the laws of the
United States of America.
1. The Securities. The Company has by a Placement Agency
Agreement, dated as of November 2, 1993 (the "Placement Agency Agreement"),
among the Company and NatWest Securities Limited, as representative of the
several placement agents (collectively, the "Placement Agents"), agreed to
issue up to U.S.$86,250,000 aggregate principal amount of its 6-7/8%
Convertible Debentures Due 1998 (hereinafter referred to as the "Securities").
Interest on the Securities shall be calculated on the basis of a 360 day year
comprised of twelve 30 day months. Except as set forth in the next sentence,
the Securities will initially be issued in temporary form, and will
subsequently be exchanged for Securities in definitive form either as bearer
Securities ("Bearer Securities"), in denominations of U.S. $1,000 and U.S.
$10,000 and with interest coupons attached, representing the semiannual
interest payable thereon, or as fully registered Securities ("Registered
Securities"), in denominations of U.S. $1,000 and integral multiples thereof.
The Securities in definitive form shall be substantially in the form of Exhibit
A hereto (the "Definitive Securities"). The Securities will be convertible as
provided in Section 4 of the Definitive Securities and Section 7 hereof. The
Securities may be redeemed by the Company as provided in Section 3 of the
Definitive Securities and Section 6 hereof. The temporary global debenture in
respect of the Securities will be issued in bearer form without coupons in the
aggregate principal amount of the entire issue of Securities, substantially in
the form of Exhibit B hereto (the "Global Security"). The Definitive
Securities and the Global Security shall contain such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
this Agreement and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistent herewith, be determined by the officer of the Company executing such
Securities, as evidenced by his execution of such Securities.
2. Appointment of Agents and Security Registrar.
(a) The Company hereby appoints Fleet National Bank, at present
having its principal corporate trust office at 111 Westminster Street,
Providence, Rhode Island 02903 and having an agent with an office in London at
Fleet Bank of Massachusetts, N.A., 40-41 St. Andrews Hill, London EC4V 5DE
England, as its fiscal agent in respect of the Securities upon the terms and
subject to the conditions herein set forth. (Fleet National Bank and its
successor or successors as such fiscal agent qualified and appointed in
accordance with Section 11 hereof are herein called the "Fiscal Agent.") The
Fiscal Agent shall have the
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powers and authority granted to and conferred upon it herein and in the
Securities, and such further powers and authority, acceptable to it, to act on
behalf of the Company as the Company may hereafter grant to or confer upon it.
(b) In addition, the Company hereby appoints Fleet National
Bank at present located at 111 Westminster Street, Providence, Rhode Island
02903 acting through its agent's office in London at Fleet Bank of
Massachusetts, N.A., 40-41 St. Andrews Hill, London EC4V 5DE England, as its
paying agent in respect of the Securities upon the terms and subject to the
conditions herein set forth. (Fleet National Bank and its successor or
successors as such paying agent qualified and appointed in accordance with
Section 11 hereof are herein called the "Paying Agent.") The Paying Agent
shall have the powers and authority granted to and conferred upon it herein and
in the Securities, and such further powers and authority, acceptable to it, to
act on behalf of the Company as the Company may hereafter grant to or confer
upon it. As used herein, "paying agencies" shall mean paying agencies
maintained by the Company as provided in Section 12(f) hereof.
(c) The Company hereby appoints Fleet National Bank, at present
located at 111 Westminster Street, Providence, Rhode Island 02903, acting
through its agent's office in London at Fleet Bank of Massachusetts, N.A.,
40-41 St. Andrews Hill, London EC4V 5DE England, as its conversion agent in
respect of the Securities upon the terms and subject to the conditions herein
set forth (Fleet National Bank and its successor or successors as such
conversion agent qualified and appointed in accordance with Section 11 hereof
are herein called the "Conversion Agent," and the Paying Agent, the Conversion
Agent, the Transfer Agents (as herein defined) and the Fiscal Agent are
sometimes herein referred to severally as an "Agent" and, collectively, as the
"Agents"). The Conversion Agent shall have the powers and authority granted to
and conferred upon it herein and in the securities, and such further powers and
authority, acceptable to it, to act on behalf of the Company as the Company may
hereafter grant to or confer upon it. As used herein, "conversion agencies"
shall mean conversion agencies maintained by the Company as provided in Section
12(f) hereof.
(d) The Company shall cause to be kept at the principal
corporate trust office of the Fiscal Agent a register (the registers maintained
in such office and in any other office or agency designated for such purpose
(which office shall be located outside of the United Kingdom) being herein
sometimes collectively referred to as the "Security Register") in which,
subject to such reasonable regulations as the Company may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Fiscal Agent is hereby appointed
"Security Registrar" for the
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purpose of registering Registered Securities and transfers of Registered
Securities as herein provided.
3. Registration and Transfer.
(a) Upon surrender for registration of transfer of any
Registered Security at any office or agency designated for such purpose by the
Company pursuant to Section 12(g) hereof, the Company shall execute, and the
Fiscal Agent shall authenticate and register and make available for delivery,
in the name of the designated transferee or transferees, one or more new
Registered Securities of any authorized denominations and of a like aggregate
principal amount.
(b) Bearer Securities may, at the option of the holder thereof,
be exchanged for an equal aggregate principal amount of Registered Securities
in denominations of $1000 and integral multiples thereof without coupons and/or
Bearer Securities of authorized denominations, upon surrender of the Bearer
Securities to be exchanged at any office or agency designated for such purpose
by the Company pursuant to Section 12(g), with all unmatured coupons and all
matured coupons in default thereto appertaining. If such holder is unable to
produce any such unmatured coupon or coupons or matured coupon or coupons in
default, such exchange may be effected if the Bearer Securities are accompanied
by payment (which payment shall be deposited in the Company's account with the
Fiscal Agent) in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by
the Company in writing if there be furnished to it such security or indemnity
as it may require to save it, the Fiscal Agent, the Paying Agent and any paying
agency harmless. If thereafter the holder of such Security shall surrender to
any paying agency any such missing coupon in respect of which such a payment
shall have been made, such holder shall be entitled to receive the amount of
such payment (which shall be provided to the Fiscal Agent by the Company).
Registered Securities may, at the option of the holder thereof,
be exchanged for Registered Securities of any other authorized denominations
and of a like aggregate principal amount, upon surrender of the Securities to
be exchanged at any office or agency designated for such purpose by the Company
pursuant to Section 12(g). Registered Securities shall not be exchangeable for
Bearer Securities. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Fiscal Agent shall authenticate and deliver
the Registered Securities which the holder making the exchange is entitled to
receive.
(c) All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid
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obligations of the Company, evidencing the same obligations, and entitled to
the same benefits under this Agreement, as the Securities surrendered upon such
registration of transfer or exchange.
(d) Every Registered Security presented for registration of
transfer or surrendered for exchange shall be duly endorsed in blank, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company, the Fiscal Agent and the Transfer Agent to which such Security is
presented or surrendered and the Security Registrar, duly executed by the
holder thereof or his attorney duly authorized in writing. In the case of
Registered Securities, all such instruments shall comply with the provisions of
paragraph (a) above. The registration of the transfer of a Registered Security
by the Security Registrar shall be deemed to be the written acknowledgement of
such transfer by the Company.
(e) No service charge shall be made for any exchange or
registration of transfer, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any exchange or registration of transfer of Securities, other
than exchanges pursuant to Section 4 hereof or not involving any registration
of transfer.
(f) Neither the Company nor the Fiscal Agent nor any of the
offices or agencies designated for the purposes specified in Section 12(f) nor
any Transfer Agent shall be required (i) to exchange Bearer Securities for
Registered Securities during the period between the close of business on the
Record Date (as defined in Section 5 hereof) and the opening of business on the
next succeeding interest payment date, (ii) to exchange any Bearer Security (or
portion thereof) for a Registered Security if the Company shall have determined
and informed the Fiscal Agent in writing that, as a result thereof, the Company
may incur adverse consequences under the Federal income tax laws and
regulations (including proposed regulations) of the United States in effect or
proposed at the time of such exchange, or (iii) in the event of a redemption in
part, (A) to register the transfer of Registered Securities or to exchange any
Bearer Securities for Registered Securities during a period of 15 days
immediately preceding the date notice is given identifying the serial numbers
of the Securities to be redeemed, or (B) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in
part, except portions not being redeemed of Securities being redeemed in part,
or (C) to exchange any Bearer Security called for redemption; provided,
however, that a Bearer Security called for redemption may be exchanged, on the
terms and conditions set forth above, for a Registered Security that is
simultaneously surrendered, with written instruction for payment on the date
fixed for redemption,
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unless the redemption date is between the close of business on any Record Date
and the close of business on the next succeeding interest payment date, in
which case such exchange may only be made prior to the Record Date immediately
preceding the redemption date.
4. Global Security; Exchange.
(a) The Securities shall initially be in the form of the Global
Security. The Global Security shall be authenticated by the Fiscal Agent upon
the order of the Company on the same conditions, in substantially the same
manner and with the same effect as the Definitive Securities. The Global
Security will be issued upon payment to the Company or its order in United
States dollars in next-day funds by check or wire transfer to a United States
dollar account designated by the Company, at 2:30 p.m., London time, on
November 15, 1993, or at such other time on the same or such other date, not
later than 5:00 p.m., London time, on the fifth business day in London
thereafter, as the Placement Agents and the Company may agree. Such payment
will be made (1) upon authorization from the Placement Agents and (2) against
delivery of the Global Security for the balance of the Securities to The Chase
Manhattan Bank, N.A., London office, as depositary (the "Common Depositary")
for Morgan Guaranty Trust Company of New York, Brussels office, as operator of
the Euroclear System (the "Euroclear Operator"), and Centrale de Livraison de
Valeurs Mobilieres S.A. ("CEDEL S.A."). The Global Security shall be held on
deposit with the Common Depositary for the accounts of the Euroclear Operator
and CEDEL S.A., for credit to the Placement Agents' respective Securities
Clearance Accounts (or to such other accounts as the Placement Agents may have
specified) with the Euroclear Operator or CEDEL S.A.
(b) Without unnecessary delay but in any event not less than
15 days prior to the Exchange Date (as defined below), the Company will execute
and deliver to the Fiscal Agent at its agent's office in London Definitive
Securities in the aggregate principal amount outstanding in the Global
Debenture. "Exchange Date" means the date following the expiration of the
40-day period commencing on the Closing Date. On or after the Exchange Date,
the Global Security may be surrendered to the Fiscal Agent to be exchanged, as
a whole or in part, for Definitive Bearer Securities without charge, and the
Fiscal Agent shall authenticate and deliver, in exchange for such Global
Security or the portions thereof to be exchanged, an equal aggregate principal
amount of Definitive Bearer Securities, but only upon presentation to the
Fiscal Agent at its agent's office in London of a certificate of the Euroclear
Operator or CEDEL S.A. with respect to the Global Security or portions thereof
being exchanged, substantially in the form of Exhibit C hereto, to the effect
that Morgan Guaranty Trust Company of New York as
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operator of the Euroclear System (the "Euroclear Operator") or Centrale de
Livraison de Valeurs Mobilieres S.A. ("CEDEL S.A.") has received a certificate
or certificates in substantially the form set forth in Exhibit D hereto dated
no earlier than 15 days prior to the Exchange Date and signed by the person
appearing in its records as the owner of the Global Security or portions
thereof being exchanged. Similarly, after the Exchange Date, portions of the
Global Security may be exchanged for an equal aggregate principal amount of
Definitive Registered Securities upon presentation to the Fiscal Agent at its
agent's office in London of a certificate substantially in the form of Exhibit
E hereto.
(c) Only Bearer Securities may be issued upon receipt by the
Euroclear Operator or CEDEL S.A. of a certificate or certificates in the form
of Exhibit D hereto. Bearer Securities will be delivered only outside the
United States, its territories or possessions. Only Registered Securities may
be issued upon receipt by the Euroclear Operator or CEDEL S.A. of a certificate
or certificates in the form of Exhibit E hereto.
(d) The delivery to the Fiscal Agent by the Euroclear Operator
or CEDEL S.A. of any certificate referred to above may be relied upon by the
Company and the Fiscal Agent as conclusive evidence that a corresponding
certificate or certificates has or have been delivered to the Euroclear
Operator or CEDEL S.A. pursuant to the terms of this Agreement.
(e) Upon any such exchange of a portion of the Global Security
for a Definitive Security or Securities, the Global Security shall be endorsed
by the Fiscal Agent to reflect the reduction of its principal amount by an
amount equal to the aggregate principal amount of such Definitive Security or
Securities. Until so exchanged in full, the Global Security shall in all
respects be entitled to the same benefits under this agreement as Definitive
Securities authenticated and delivered hereunder.
5. Payment.
(a) The Company will pay or cause to be paid to the Paying
Agent the amounts, at the times and for the purposes, set forth herein and in
the text of the Securities, and the Company hereby authorizes and directs the
Paying Agent to make payment of the principal of and interest on and Additional
Amounts (as defined in Section 2 of the Definitive Securities), if any, on the
Securities from such payments.
(b) At least 15 days prior to the date on which any payment of
Additional Amounts shall be required to be made pursuant to Section 2 of the
Definitive Securities, the Company will furnish the Paying Agent, each other
paying agency of the
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Company and the Fiscal Agent with a certificate of one of its duly authorized
officers instructing the Paying Agent and each other paying agency of the
Company as to the amounts required (i) to be deducted or withheld for or on
account of any taxes described in Section 2 of the Definitive Securities from a
payment to be made on that date and (ii) to be paid to each holder of
Securities or coupons as Additional Amounts pursuant to that paragraph. If the
foregoing amounts are not uniform for all holders, then the Company's
certificate shall specify by country of residence or other factor, with
reasonable clarity, the amounts required to be deducted or withheld and to be
paid as Additional Amounts for each holder or class of holders of the
Securities or coupons. In the absence of its receipt of any such certificate
from the Company, the Paying Agent may make payment without deduction or
withholding. The Company hereby agrees to indemnify the Paying Agent, each
other paying agency of the Company and the Fiscal Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part, arising out of or in connection with
actions taken or omitted by any of them in reliance on any certificate
furnished pursuant to this Section.
(c) Interest on any Registered Security that is payable, and is
punctually paid or duly provided for, on any interest payment date shall be
paid to the person in whose name that Security is registered at the close of
business on the May 1 or November 1 immediately preceding such interest payment
date (each a "Record Date"). In case a Bearer Security is surrendered for
exchange for a Registered Security after the close of business on any Record
Date and before the opening of business on the next succeeding interest payment
date, the Fiscal Agent shall not be required to perform such transfer or
exchange of such Security.
(d) In the case of any Registered Security which is converted
after any Record Date and on or prior to the next succeeding interest payment
date (other than any Registered Security called for redemption prior to such
interest payment date), interest that is payable on such interest payment date
shall be payable on such interest payment date notwithstanding such conversion,
and such interest shall be paid to the person in whose name that Registered
Security is registered at the close of business on such Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Security which is converted, interest that is payable after the date of
conversion on such Security shall not be payable.
(e) Any interest on any Registered Security that is payable,
but is not punctually paid or duly provided for, on any interest payment date
shall forthwith cease to be payable to the registered holder thereof on the
relevant Record Date by virtue of having been such holder, and such defaulted
interest
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may be paid by the Company to the registered holder of such Registered Security
on a subsequent record date established by the Company in any lawful manner if,
after written notice given by the Company to the Fiscal Agent of the proposed
payment pursuant to this clause, such manner of payment shall be deemed
practicable by the Fiscal Agent.
(f) Subject to the foregoing provisions of this Section 5, each
Security delivered under this Agreement upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry all the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
(g) In order to provide for the payment of the principal of and
interest on the Securities as the same shall become due and payable, the
Company shall pay to the Paying Agent at its agent's office in London, in such
coin or currency of the United States of America as at the time of payment is
legal tender for the payment of public and private debts therein, and in same
day funds, the following amounts (and the Company shall give notice to the
Fiscal Agent at least one full business day prior to the date payment is due to
the Paying Agent as to the means of such payment), to be held and applied by
the Paying Agent as hereinafter set forth:
(i) The Company shall pay to the Paying Agent on the
business day immediately prior to each interest payment date in
immediately available funds an amount sufficient to pay the interest
due on (and Additional Amounts, if any, on) all the Securities
outstanding on such interest payment date, and the Paying Agent shall
apply the amounts so paid to it to the payment of such interest (and
Additional Amounts, if any) on such interest payment date.
(ii) If the Company shall elect, or shall be required, to
redeem the Securities in accordance with Section 6 hereof, the
Company will pay to the Paying Agent on the business day immediately
prior to the date fixed for redemption thereof in immediately
available funds an amount sufficient (with any amount then held by
the Paying Agent and available for the purpose) to pay the redemption
price of the Securities called for redemption on the redemption date
or entitled to be redeemed, together with accrued interest thereon
(and Additional Amounts, if any, thereon) to the date fixed for
redemption if such redemption date occurs on an interest payment
date, and the Paying Agent shall apply such amount to the payment of
the redemption price and accrued interest (and Additional Amounts, if
any) in accordance with the terms of the Securities.
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(iii) On the business day immediately prior to the maturity
date of the Securities, the Company shall pay to the Paying Agent in
immediately available funds an amount which, together with any
amounts then held by the Paying Agent, and available for payment
thereof, shall be equal to the entire amount of principal and
interest (and Additional Amounts, if any) to be due on such maturity
date on all the Securities then outstanding, and the Paying Agent
shall apply such amount to the payment of the principal of and
interest on (and Additional Amounts, if any, on) the Securities in
accordance with the terms of the Securities.
6. Redemption. If, under the circumstances described in Section 3
of the Definitive Securities, the Company shall elect to redeem the outstanding
Securities, the following provisions shall be applicable:
(a) The Company shall, at least 75 days (or such shorter period
as shall be reasonably acceptable to the Fiscal Agent) before the date
designated for any redemption, give written notice to the Agents of its
election to redeem the outstanding Securities on the redemption date specified
in such notice and state in such notice that the conditions precedent to such
redemption have occurred and describe them and shall request the Fiscal Agent
to arrange for publication and mailing of the notice specified in clause (c)
below.
(b) In case the Company shall give notice to the Agents of its
election to redeem the Securities, the Fiscal Agent shall cause to be published
on behalf of the Company a notice of redemption in accordance with the
provisions of Section 3 of the Definitive Securities and shall mail by
first-class mail a copy of the notice to each holder of a Registered Security
at the address of such holder as it shall appear in the Security Register. The
Fiscal Agent shall send a copy of such notice of redemption to the Company, the
Paying Agent (if different from the Fiscal Agent) and each other paying agency
of the Company.
(c) Such notice shall be published on behalf and at the expense
of the Company in an Authorized Newspaper (as defined in Section 19 hereof), as
provided in Section 19 of this Agreement and Section 3 of the Definitive
Securities. In the case of a redemption in whole at the option of the Company,
notice will be given once not more than 60 nor less than 30 days prior to the
date fixed for redemption. In the case of a partial redemption, notice will be
given twice, the first such notice to be given not more than 75 nor less than
60 days prior to the date fixed for redemption and the second such notice to be
given not more than 60 and not less than 30 days prior to the date fixed for
redemption. The Company shall notify the Fiscal Agent
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promptly of the specific outstanding Securities to be called for redemption.
Notwithstanding any other provision of this Section 6, with
respect to redemptions described in Section 3(a) of the Definitive Securities,
the Securities will be immediately redeemable, at the option of and upon notice
by the Company to the Fiscal Agent as provided in this Section 6, to the extent
deemed sufficient in the opinion of the Company's Board of Trustees to prevent
the holder of such Securities or any other person having an interest therein if
the Securities were thereupon converted from being deemed to own shares of
beneficial interest of the Company ("Shares") in excess of the limits
prescribed in Article VI, Section 6.15 of the Company's Restated Declaration of
Trust, as amended, provided the Company shall notify the Fiscal Agent from time
to time with respect to the number of Shares that would exceed such limits.
7. Conversion of Securities.
(a) Subject to and upon compliance with the provisions of this
Section 7, at the option of the holder thereof, any Definitive Security or, in
the case of any Registered Security or Bearer Security of a denomination other
than $1,000, any portion of the principal amount thereof which is $1,000 or an
integral multiple of $1,000 may be converted at any time on or after the date
which is, in the case of Bearer Securities, the Exchange Date, at the principal
amount thereof, or of such portion thereof, into fully paid and nonassessable
Shares as set forth in the Definitive Securities. The price at which Shares
shall be delivered upon conversion (herein called the "Conversion Price") shall
be initially $37.125 per Share. The Conversion Price shall be adjusted in
certain instances as provided in paragraphs (c)(i), (ii), (iii), (iv), (vi) and
(vii) of Section 4 of the Definitive Securities. Notwithstanding the
foregoing, a holder may not convert any Security, and such Security shall not
be convertible by any holder, if as a result of such conversion any person
would then be deemed to own Shares in excess of the limits prescribed in
Article VI, Section 6.15 of the Company's Restated Declaration of Trust, as
amended.
(b) In order to exercise the conversion privilege, the holder
of any Security to be converted shall surrender such Security, or, if less than
the entire principal amount of a Registered Security or Bearer Security of a
denomination other than $1,000 is to be converted, the portion thereof to be
converted, together with all unmatured coupons and any matured coupons in
default appertaining thereto, at the office of the Conversion Agent or any
office or agency of the Company maintained for that purpose pursuant to Section
12(f), accompanied by written notice, in substantially the form set forth in
the Definitive Security, to the Company, at such office
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or agency that the holder elects to convert such Security. Registered
Securities surrendered for conversion during the period after the close of
business on any Record Date next preceding any interest payment date to the
close of business on such interest payment date shall (except in the case of
Registered Securities or portions thereof which have been called for redemption
on a redemption date within such period) be accompanied by payment of an amount
equal to interest payable on such interest payment date on the principal amount
being surrendered for conversion. Except as otherwise provided in the
immediately preceding sentence and subject to Section 5(d), no payment or
adjustment shall be made upon any conversion on account of any interest accrued
on the Securities surrendered for conversion or on account of any dividends on
the Shares issued upon conversion.
(c) Securities shall be deemed to have been converted
immediately prior to the close of business on the day of surrender of such
Securities for conversion in accordance with the foregoing provisions, and at
such time the rights of the holders of such Securities as holders shall cease,
and the person or persons entitled to receive the Shares issuable upon
conversion shall be treated for all purposes as the record holder or holders of
such Shares at such time. As promptly as practicable on or after the
conversion date, the Company shall cause to be issued or delivered at such
office or agency a certificate or certificates for the number of full Shares
issuable or deliverable upon conversion, together with payment, in lieu of any
fraction of a share, as provided below.
(d) In the case of any Registered Security or Bearer Security
of a denomination other than $1,000 which is converted in part only, upon such
conversion the Company shall execute and the Fiscal Agent shall authenticate
and deliver to the holder thereof, at the expense of the Company, a new
Security or Securities of any authorized kind or denomination as requested by
such holder, in aggregate principal amount equal to the unconverted portion of
the principal amount of such Security.
(e) No fractional Shares shall be issued or delivered upon
conversion of Securities. If more than one Security shall be surrendered for
conversion at one time by the same holder, the number of full shares which
shall be issuable or deliverable upon conversion thereof shall be computed on
the basis of the aggregate principal amount of the Securities (or, in the case
of Registered Securities or Bearer Securities of a denomination other than
$1,000, specified portions thereof) so surrendered. Instead of any fractional
Share which would otherwise be issuable or deliverable upon conversion of any
Security or Securities (or, in the case of Registered Securities or Bearer
Securities of a denomination other than $1,000, specified portions thereof),
the Company shall pay a cash
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adjustment in respect of such fraction in an amount equal to the same fraction
of the Closing Price per Share (as defined in the Definitive Securities) at the
close of business on the day preceding the day of conversion.
(f) Whenever the Conversion Price is adjusted as provided in
the Definitive Securities:
(i) the Company shall compute the adjusted Conversion
Price in accordance with the terms of the Definitive Securities and
shall prepare a certificate signed by the President, any Vice
President or the Treasurer of the Company setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon
which such adjustment is based, and such certificate shall forthwith
be filed with the Conversion Agent and at each office or agency
maintained for the purpose of conversion of Securities pursuant to
Section 12(f); and
(ii) a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price shall
forthwith be required, and, as soon as practicable after it is
required, the Company shall promptly cause a notice setting forth the
adjusted Conversion Price to be given to the holders of the
Securities as provided in Section 19.
(g) In case:
(i) the Company shall declare a dividend (or any other
distribution) on its Shares payable otherwise than in cash out of its
retained earnings (excluding dividends payable in Shares for which
adjustment is made pursuant to the terms of the Definitive
Securities); or
(ii) the Company shall authorize the granting to the
holders of its Shares of rights or warrants to subscribe for or
purchase any equity securities of any class or of any other rights;
or
(iii) of any reclassification of the Shares of the Company
(other than a subdivision or combination of its outstanding Shares)
or of any consolidation or merger to which the Company is a party and
for which approval of any stockholders of the Company is required, or
of the sale or transfer of all or substantially all of the assets of
the Company; or
(iv) of the involuntary dissolution, liquidation or
winding up of the Company; or
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(v) the Company proceeds to take any other action which
would require an adjustment of the Conversion Price pursuant to the
Definitive Securities;
then the Company shall cause to be filed with the Conversion Agent and at each
office or agency maintained for the purpose of conversion of Securities a
notice setting forth the anticipated adjusted Conversion Price and a brief
statement of the facts requiring such adjustment, and shall cause notice to be
given as provided in Section 19 except that notice need be given once at least
20 days (or 10 days in any case specified in clause (i) or (ii) above) prior to
the applicable record date hereinafter specified, stating (x) the date on which
a record is to be established for the purpose of such dividend, distribution,
or grant of rights or warrants or, if a record is not to be established, the
date as of which the holders of Shares of record to be entitled to such
dividend, distribution, rights or warrants is to be determined, or (y) the date
on which a reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up or other action is expected to become
effective, and the date as of which it is expected that holders of Shares of
record shall be entitled to exchange their Shares for the securities, cash or
other property deliverable upon such reclassification, consolidation, merger,
sale, transfer, dissolution, liquidation or winding up or other action. The
failure to give notice required by this Section or any defect therein shall not
affect the legality or validity of any dividend, distribution, rights,
warrants, reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding up, or other action, or the vote on any such action.
(h) The Company shall, at all times from and after the date on
which the Securities are convertible into Shares, have reserved and available,
free from preemptive rights, out of its authorized but unissued Shares, for the
purpose of effecting the conversion of Securities, the full number of Shares
then issuable upon the conversion of all Securities.
(i) The Company covenants that all Shares which may be issued
or delivered upon conversion of Securities will upon issuance be fully paid and
nonassessable and, except as provided in Section 13, the Company will pay all
stamp, excise or similar taxes or duties, liens and charges with respect to the
issue thereof.
(j) All converted Securities shall be held by the Company, and
may, at any time, be delivered to the Fiscal Agent for cancellation, which
shall hold or dispose of the same in accordance with its policy for disposal of
canceled Securities or as otherwise directed by the Company. Converted
Securities shall not be transferred. The Company will promptly give, or
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cause to be given, written notice to the Fiscal Agent of the serial numbers of
all Securities which have been converted.
(k) In case of any consolidation with, or merger of the Company
into, any other corporation, or in case of any merger of another corporation
into the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding Shares of
the Company), or in case of any sale or transfer of all or substantially all of
the assets of the Company, the corporation formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Fiscal Agent an amendment to the Fiscal Agency
Agreement providing that the holder of each Definitive Security shall have the
right during the period such Security shall be convertible as specified in the
Definitive Securities to convert such Securities only into the kind and amount
of securities, cash, and other property receivable upon such consolidation,
merger, sale or transfer by a holder of the number of Shares of the Company
into which such Security might have been converted immediately prior to such
consolidation, merger, sale or transfer assuming, if such consolidation,
merger, sale or transfer is prior to the period such Security shall be
convertible, that the Securities were convertible at such time at the initial
Conversion Price as adjusted pursuant to the terms of the Definitive
Securities. Such amendment shall provide for adjustments which, for events
subsequent to the effective date of such amendment, shall be as nearly
equivalent as may be practicable, as determined by the Company, to the
adjustments provided for in the Definitive Securities. The above provisions of
this Section shall similarly apply to successive consolidations, mergers, sales
or transfers.
(l) Subject to Section 11(j), neither the Fiscal Agent nor the
Conversion Agent or agency appointed by the Company shall at any time be under
any duty or responsibility to any holder of Securities to determine whether any
facts exist which may require any adjustment of the Conversion Price, or with
respect to the nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in the Definitive Securities
provided to be employed, in making the same. Neither the Fiscal Agent nor the
Conversion Agent or agency appointed by the Company shall be accountable with
respect to (i) the validity or value (or the kind or amount) of any Shares or
of any securities or property which may at any time be issued or delivered upon
the conversion of any Security or (ii) the calculation of the Conversion Price;
and neither the Fiscal Agent nor the Conversion Agent or agency appointed by
the Company makes any representation with respect thereto. Neither the Fiscal
Agent nor the Conversion Agent or agency appointed by the Company shall be
responsible for any acts or omissions of the Company including without
limitation any failure of the Company to issue, transfer or deliver any Shares
or Share certificates or
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other securities or property or to make any cash payment upon the delivery of
any Security for the purpose of conversion or to comply with any of the
covenants contained in this Section 7.
(m) The Fiscal Agent has no duty to determine when an
adjustment under this paragraph 7 should be made, how it should be made or
whether it should be made. The Fiscal Agent shall not be accountable for and
makes no representation as to the validity or value of any securities or assets
issued upon conversion of the Securities or the calculation of the Conversion
Price.
8. Surrendered Securities. All Securities, together with any
coupons appertaining thereto, surrendered for payment, redemption, retirement,
transfer or exchange and all coupons paid through the application of interest
installments shall be delivered to the Fiscal Agent. In any such case the
Fiscal Agent shall cancel all Securities and coupons not previously canceled
and dispose of or deliver all such Securities and coupons to the Company in
accordance with the Fiscal Agent's policy for disposal of canceled securities.
9. Mutilated, Destroyed, Stolen or Lost Securities. The Fiscal
Agent is hereby authorized, in accordance with the provisions of the Securities
and this Section, from time to time to authenticate and deliver Securities in
exchange for or in lieu of Securities that become mutilated, destroyed, stolen
or lost, upon receipt of indemnity and such other documents or proof as may be
required in form and substance satisfactory to the Fiscal Agent and the
Company. Every Security authenticated and delivered in exchange for or in lieu
of any such Security shall be considered the obligation of the Company and
shall carry all the rights to interest accrued and unpaid and to accrue which
were carried by such Security, and notwithstanding anything to the contrary
herein contained, any new Bearer Security shall have attached thereto such
coupons that neither gain nor loss in interest shall result from such exchange
or substitution.
10. Signatures. Securities shall be executed on behalf of the
Company by its Chairman, its President, its Secretary, any Vice President or
its Treasurer or any Assistant Secretary, any of whose signatures may be manual
or in facsimile, and any coupons appertaining thereto shall be executed on
behalf of the Company by the facsimile signature of its Chairman, its
President, its Secretary, any Vice President or its Treasurer or any Assistant
Secretary. Any signature in facsimile may be imprinted or otherwise reproduced
on the Securities. The Company may adopt and use the signature or facsimile
signature of any person who shall be a Chairman, President, Secretary, Vice
President, Treasurer or Assistant Secretary at the time of the execution of the
Securities, notwithstanding the fact that at the time the Securities shall be
authenticated and delivered, or
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disposed of, such person shall have ceased to have held such office by virtue
of which such person so executed such security.
11. Agreements Concerning Agents. Each of the Agents accepts its
obligations herein and in the Securities, upon the terms and conditions hereof
and thereof, including the following, to all of which the Company agrees and to
all of which the rights hereunder of the holders from time to time of the
Securities and coupons shall be subject:
(a) Each of the Agents shall be entitled to reasonable compensation
for all services rendered by such Agent, as separately agreed to from time to
time by the Company and such Agent, and the Company agrees to pay promptly such
compensation and to reimburse each of the Agents for the reasonable
out-of-pocket expenses (including, but not limited to, reasonable counsel fees
and expenses) incurred by such Agent in connection with the services rendered
by it hereunder. The Company also agrees to indemnify each of the Agents and
each other paying agency and conversion agency of the Company for, and to hold
it harmless against, any loss, liability or expense (including the costs and
expenses of defending against any claims of liability, including the reasonable
fees and expenses of its counsel) incurred without negligence or bad faith on
the part of such Agent or other paying agency and conversion agency, arising
out of or in connection with its acting as an Agent or other paying agency and
conversion agency of the Company hereunder or otherwise in connection with the
Securities. The obligations of the Company under this clause (a) shall survive
payment of the Securities or the resignation or removal of any Agent or paying
agency and conversion agency.
(b) In acting under this Agreement and in connection with the
Securities, each of the Agents and each other paying agency and conversion
agency of the Company is acting solely as agent of the Company, and does not
assume any obligation, or relationship of agency or trust, for or with any of
the owners or holders of the Securities or coupons, except that all funds held
by the Paying Agent or any other paying agency of the Company for payment of
principal of or interest on (or Additional Amounts, if any, on) the Securities
shall be held in trust but need not be segregated from other funds except as
required by law and as set forth herein and in the Securities, and shall be
applied as set forth herein and in the Securities; provided, however, that
monies paid by the Company to the Paying Agent or any other paying agency of
the Company for the payment of principal of or interest on (or Additional
Amounts, if any, on) Securities remaining unclaimed at the end of two years
after such principal or interest (or Additional Amounts, if any) shall have
become due and payable shall be repaid to the Company, as provided and in the
manner set forth in the Definitive Securities, whereupon the aforesaid trust
shall terminate and all liability of the Paying
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Agent or such other paying agency of the Company with respect thereto shall
cease.
(c) Each of the Agents and each other paying agency and conversion
agency of the Company may consult with one or more counsel satisfactory to it
(including counsel to the Company), and the written opinion of such counsel
shall be full and complete authorization and protection in respect of any
action taken, omitted or suffered by it hereunder in good faith and in
accordance with the opinion of such counsel.
(d) Each of the Agents and each other paying agency and conversion
agency of the Company shall be protected and shall incur no liability for or in
respect of any action taken, omitted or suffered by it in reliance upon any
Security or coupon, notice, direction, consent, certificate, affidavit,
statement or other paper or document believed in good faith by such Agent or
such other paying agency and conversion agency of the Company to be genuine and
to have been signed by the proper party or parties.
(e) Each of the Agents and each other paying agency and conversion
agency of the Company, its officers, directors and employees may become the
owner of, or acquire any interest in, any Securities or coupons, with the same
rights that it or they would have if it were not an Agent or such other paying
agency of the Company hereunder, and may engage or be interested in any
financial or other transaction with the Company and its affiliates and may act
on, or as depositary, trustee or agent for, any committee or body of holders of
Securities or other obligations of the Company, as freely as if it were not an
Agent or a paying agency or conversion agency of the Company hereunder.
(f) Neither the Paying Agent nor any other paying agency of the
Company shall be under any liability for interest on, or have any
responsibility to invest, any monies at any time received by it pursuant to any
of the provisions of this Agreement or of the Securities.
(g) The recitals contained herein and in the Securities (except in
the Fiscal Agent's certificates of authentication), shall be taken as the
statements of the Company, and the Agents assume no responsibility for the
correctness of the same. None of the Agents makes any representation as to the
validity or sufficiency of this Agreement or the Securities or coupons or the
Company's Offering Memorandum dated October 29, 1993 and amended on November 2,
1993, or any other offering material, except for such Agent's due authorization
to execute this Agreement. Neither the Agents nor any other paying agency of
the Company shall be accountable for the use or application by the Company of
the proceeds of any Securities.
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(h) The Agents and each other paying agency and conversion agency of
the Company shall be obligated to perform such duties and only such duties as
are herein and in the Securities specifically set forth and no implied duties
or obligations shall be read into this Agreement or the Securities against the
Agents or any other paying agency and conversion agency of the Company. The
Agents shall not be under any obligation to take any action hereunder which may
tend to involve them in any expense or liability, the payment or reimbursement
of which within a reasonable time is not, in their reasonable opinion, assured
to them through surety or other indemnity satisfactory to such Agents.
(i) Unless herein or in the Securities otherwise specifically
provided, any order, certificate, notice, request, direction, or other
communication, from the Company made by or given by it under any provision of
this Agreement shall be in writing and shall be sufficient if signed by the
Chairman, President, Secretary, Assistant Secretary, any Vice President or
Treasurer of the Company.
(j) Anything in this Agreement to the contrary notwithstanding, none
of the Agents shall incur any liability hereunder, except as a result of
negligence or bad faith attributable to it or its officers or employees, and
shall incur no liability for the negligence or bad faith of its agents
appointed by it with due care; provided that the Agent shall notify the Company
of the appointment of any such agents.
(k) Except as specifically provided herein or in the Securities,
none of the Agents shall have any duty or responsibility in case of any default
by the Company in the performance of its obligations (including, without
limiting the generality of the foregoing, any duty or responsibility to
accelerate all or any of the Securities or to initiate or to attempt to
initiate any proceedings at law or otherwise or to make any demand for the
payment thereof upon the Company).
12. Offices, Resignation, Successors, Etc. of Agents; Paying,
Conversion and Transfer Agencies.
(a) The Company agrees that, until none of the Securities and
coupons is outstanding or until monies for the payment of all principal of and
interest on (and Additional Amounts payable pursuant to Section 2 of the
Definitive Securities, if any, on) all outstanding Securities shall have been
made available at the office of the Paying Agent and shall have been returned
to the Company as provided in the Securities, there shall at all times be a
Fiscal Agent in Providence, Rhode Island or the Borough of Manhattan, New York
City, which shall be a bank or trust company organized and doing business under
the laws of the United States of America or of any State of the
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United States of America, in good standing and authorized under such laws to
exercise corporate trust powers, a Paying Agent and a Conversion Agent having
offices or agents in a city in Western Europe and in either Providence, Rhode
Island or New York City, which shall be a bank or trust company organized, in
good standing and doing business under the laws of the United States of America
or of any State of the United States of America, and a paying agency and a
conversion agency in at least one city in Western Europe, which shall be
Luxembourg so long as the Securities are listed on the Luxembourg Stock
Exchange.
(b) Each of the Agents may at any time resign as such Agent by
giving written notice to the Company of such intention on its part, specifying
the date on which its desired resignation shall become effective; provided,
however, that such date shall never be less than ninety days after receipt of
such notice by the Company unless the Company agrees to accept less notice.
Each of the Agents hereunder may be removed at any time by the filing with it
at least 30 days prior to the date of such proposed removal, an instrument in
writing signed on behalf of the Company and specifying such removal and the
date when it is intended to become effective. Such resignation or removal
shall take effect upon the date of the appointment by the Company, as
hereinafter provided, of a successor Fiscal Agent, Conversion Agent, Transfer
Agent or Paying Agent, as the case may be, and the acceptance of such
appointment by such successor Agent. At the time of its resignation or
removal, each of the Agents shall be entitled to the payment by the Company of
its compensation for the services rendered hereunder and to the reimbursement
of all reasonable out-of-pocket expenses incurred in connection with the
services rendered hereunder by such Agent.
(c) In case at any time any of the Agents shall resign, or shall be
removed, or shall be incapable of acting, or shall file a voluntary petition as
a debtor under Chapter 7 or 11 of Title 11 of the United States Code or have an
order for relief-entered against it as a debtor under Chapter 7 or 11 of Title
11 of the United States Code or make an assignment for the benefit of its
creditors or consent to the appointment of a receiver of all or any substantial
part of its property, or shall admit in writing its inability to pay or meet
its debts as they mature, or if an order of any court shall be entered
approving any petition filed by or against the Fiscal Agent under any
legislation similar to the provisions of Title 11 of the United States Code or
against any of the Agents under the provisions of any legislation similar to
the Provisions of Title 11 of the United States Code, or if a receiver of it or
of all or any substantial part of its property shall be appointed, or if any
public officer shall take charge or control of it or of its property or
affairs, for the purpose of rehabilitation, conservation or liquidation, a
successor Agent, qualified as aforesaid, shall be appointed by the Company by
an instrument in
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writing. Upon the appointment as aforesaid of a successor Agent and acceptance
by it of such appointment, the Agent so superseded shall cease to be such Agent
hereunder. If no successor Agent shall have been so appointed by the Company
and shall have accepted appointment as hereinafter provided, any holder of a
Security, on behalf of itself and all others similarly situated, or any Agent
may petition any court of competent jurisdiction for the appointment of a
successor Agent and shall promptly notify the Company of such action.
(d) Any successor Fiscal Agent, Conversion Agent, Transfer Agent or
Paying Agent appointed hereunder shall execute, acknowledge and deliver to its
predecessor and to the Company an instrument accepting such appointment
hereunder, and thereupon such successor Agent, without any further act, deed or
conveyance, shall become vested with all the authority, rights, powers, trusts,
immunities, duties and obligations of such predecessor with like effect as if
originally named as such Agent hereunder, and such predecessor, upon payment of
its charges and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Agent shall be entitled to
receive, all monies, securities or other property on deposit with or held by
such predecessor, as such Agent hereunder.
(e) Any corporation or bank into which any of the Agents hereunder
may be merged or converted, or any corporation or bank with which such Agent
may be consolidated, or any corporation or bank resulting from any merger,
conversion or consolidation to which such Agent shall be a party, or any
corporation or bank to which such Agent shall sell or otherwise transfer all or
substantially all the assets and business of such Agent, or any corporation to
which the Fiscal Agent shall sell or otherwise transfer all or substantially
all of its corporate trust business, provided that it shall be qualified as
aforesaid, shall be the successor to such Agent under this Agreement without
the execution or filing of any document or any further act on the part of any
of the parties hereto.
(f) So long as there shall be a Fiscal Agent and Paying Agent
hereunder, the Company shall maintain agencies (i) where Registered Securities
(but not Bearer Securities or coupons) may be presented for surrender and
payment (and for the payment of Additional Amounts on the Registered
Securities, if any) and where Securities may be surrendered for conversion in
Providence, Rhode Island or the Borough of Manhattan, New York City, and (ii)
where Securities and coupons may be surrendered for payment (and for the
payment of Additional Amounts (pursuant to Section 2 of the Definitive
Securities) on Bearer Securities, if any) and where Securities may be
surrendered for conversion in at least one city in Western Europe, which shall
be Luxembourg so long as the Securities are listed on the Luxembourg Stock
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Exchange. The Company now intends to maintain additional agencies (subject to
applicable laws and regulations) where Bearer Securities and coupons may be
surrendered for payment (and for the payment of Additional Amounts (pursuant to
Section 2 of the Definitive Securities) on Bearer Securities, if any), where
Registered Securities may be surrendered for payment and where Securities may
be surrendered for conversion in London, England and Luxembourg, and during
such period to keep the Agents advised of the names and locations of such
agencies. Unless the Company shall otherwise notify each of the Agents in
writing, the sole such paying agencies and conversion agencies shall be the
agencies specified in the Securities. The Company authorizes the Paying Agent
to pay to or to the order of the aforesaid agencies, upon demand by such
agencies, funds for the payment of the principal of and interest on (and
Additional Amounts pursuant to Section 2 of the Definitive Securities, if any,
on) the Securities. Except as otherwise arranged by the Company, the Fiscal
Agent shall arrange for the payment of the compensation of such paying agencies
for their services as such, and the Company shall pay to the Fiscal Agent from
time to time sufficient funds to make such payments.
(g) So long as there shall be a Fiscal Agent, Paying Agent and
Conversion Agent hereunder, the Company shall maintain a Security Registrar and
additional transfer agencies (the "Transfer Agents") (i) where Registered
Securities may be surrendered for exchange for Registered Securities and (ii)
in at least one city in Western Europe, where Bearer Securities may be
delivered in exchange for Bearer Securities or for Registered Securities.
Consistent with applicable laws and regulations, including the provisions of
the federal income tax laws of the United States, such agencies may be the same
agencies as or different agencies from those maintained by the Company pursuant
to Section 12(f).
The Company hereby appoints Banque Generale du Luxembourg ("Banque
Generale"), 27 Avenue Monterey, L-2951 Luxembourg, as Transfer Agent for such
exchanges. The transfer, exchange and registration of transfer or exchange of
Registered Securities shall be made by the Fiscal Agent in Providence, Rhode
Island or by Banque Generale, as agent for the Fiscal Agent, so long as the
Securities are registered on the Luxembourg Stock Exchange.
13. Taxes. The Company will pay all stamp taxes and other similar
duties, if any, that may be imposed by the United States of America or the
United Kingdom, or any state or political subdivision thereof or taxing
authority therein, with respect to the execution or delivery of this Agreement,
or the issuance of the Global Security, or the exchange from time to time of
the Global Security for Definitive Securities, or with respect to the issue or
delivery of Shares on conversion of
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Securities; provided, however, that the Company shall not be required to pay
any tax or duty which may be payable in respect of any transfer involved in the
issue or delivery of Shares in a name other than that of the holder of the
Security or Securities to be converted, and no such issue or delivery shall be
made unless and until the person requesting such issue has paid to the Company
the amount of any such tax or duty or has established to the satisfaction of
the Company that such tax or duty has been paid.
14. Meetings and Votes of Holders.
(a) A meeting of holders of Securities may be called at any
time and from time to time pursuant to this Section for any of the following
purposes: (i) to give any notice to the Company or to the Fiscal Agent, or to
give any directions to the Fiscal Agent, or to consent to the waiving of any
default hereunder or under the Definitive Securities and its consequences, or
to take any other action authorized to be taken by holders of Securities
pursuant to Section 9 of the Definitive Securities; or (ii) to take any other
action authorized to be taken by or on behalf of the holders of any specified
aggregate principal amount of the Securities under any other provision of this
Agreement, the Definitive Securities or under applicable law.
(b) Meetings of holders of Securities may be held at such place
or places in Providence, Rhode Island, The City of New York or London as the
Fiscal Agent or, in case of its failure to act, the Company or the holders
calling the meeting shall from time to time determine.
(c) The Fiscal Agent may at any time call a meeting of holders
of Securities to be held at such time and at such place in any of the locations
designated in Section 14(b) hereof as the Fiscal Agent shall determine. Notice
of every meeting of holders shall be made as specified in Section 19 hereof,
except that such notice shall set forth the time and the place of such meeting,
in general terms the action proposed to be taken at such meeting and a general
description of regulations applicable to such meeting and shall be published at
least three times in the publications specified in such Section 19, the first
publication to be not less than 21 nor more than 180 days prior to the date
fixed for the meeting.
(d) In case at any time the Company or the holders of at least
25% in aggregate principal amount of the Securities shall have requested the
Fiscal Agent to call a meeting of the holders, by written request setting forth
in reasonable detail the action proposed to be taken at the meeting, and the
Fiscal Agent shall not have given the first notice of such meeting within 21
days after receipt of such request or
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shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the holders of Securities in the amount above
specified may determine the time and the place in either of the locations
designated in Section 14(b) hereof for such meeting and may call such meeting
to take any action authorized in Section 14(a) hereof by giving notice thereof
as provided in Section 14(c) hereof.
(e) To be entitled to vote at any meeting of holders of
Securities, a person shall be (i) a holder of one or more Securities, or (ii) a
person appointed by an instrument in writing as proxy for a holder or holders
of Securities by such holder or holders, which proxy need not be a holder of
Securities. The only persons who shall be entitled to be present or to speak
at any meeting of holders shall be the persons entitled to vote at such meeting
and their counsel and any representatives of the Fiscal Agent and its counsel
and any representatives of the Company and its counsel.
(f) The persons entitled to vote a majority in principal amount
of the outstanding Securities shall constitute a quorum for the transaction of
all business specified in Section 14(a) hereof. No business shall be
transacted in the absence of a quorum unless a quorum is represented when the
meeting is called to order. In the absence of a quorum within 30 minutes of
the time appointed for any such meeting, the meeting shall, if convened at the
request of the holders of Securities (as provided in Section 14(d) hereof), be
dissolved. In any other case the meeting shall be adjourned for a period of
not less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 14(c) hereof except
that such notice need be published only once but must be given not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Subject to the foregoing, at the reconvening of any meeting adjourned for a
lack of a quorum, the persons entitled to vote 25% in principal amount of the
Securities shall constitute a quorum for the taking of any action set forth in
the notice of the original meeting. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage of the aggregate principal amount
of the Securities that shall constitute a quorum. At a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid, any
resolution and all matters (except as limited by Section 9 of the Definitive
Securities) shall be effectively passed and decided if passed or decided by the
persons entitled to vote a majority in principal amount of the Securities
represented and voting at such meeting, provided that such amount shall be not
less than 25% in principal amount of the Securities outstanding. Any holder of
a Security who has executed an instrument in writing appointing a person as his
proxy shall be deemed to be present for the purposes of
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determining a quorum and be deemed to have voted; provided, however, that such
holder shall be considered as present or voting only with respect to the
matters covered by such instrument in writing. Any resolution effectively
passed or decision taken at any meeting of the holders of Securities duly held
in accordance with this Section 14 shall be binding on all the holders of
Securities whether or not present or represented at the meeting.
(g) Notwithstanding any other provision of this Agreement, the
Fiscal Agent may make such reasonable regulations as it may deem advisable for
any meeting of holders of Securities in regard to proof of the holding of
Securities and of the appointment of proxies and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as
otherwise permitted or required by any such regulations, the holding of Bearer
Securities shall be proved by the production of the Bearer Securities or by a
certificate executed, as depositary, by, and the appointment of any proxy shall
be proved by having the signature of the person executing the proxy witnessed
or guaranteed by, in each case, any trust company, bank or banker satisfactory
to the Fiscal Agent. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified herein or other proof. The holding of Registered
Securities shall be proved by the registry books maintained in accordance with
Section 2(d) hereof or by a certificate or certificates of the Fiscal Agent in
its capacity as the Company's agent for the maintenance of such books.
(h) The Fiscal Agent shall, by an instrument in writing,
appoint a temporary chairperson of the meeting, unless the meeting shall have
been called by the Company or by the holders of Securities as provided in
Section 14(d) hereof, in which case the Company or the holders calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairperson. A permanent chairperson and a permanent secretary of the meeting
shall be elected by vote of the holders of a majority in principal amount of
the Securities represented at the meeting and entitled to vote.
(i) At any meeting each holder or proxy shall be entitled to
one vote for each U.S. $1,000 principal amount of Securities held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Securities challenged as not outstanding and
ruled by the chairperson of the meeting to be not outstanding. The chairperson
of the meeting shall have no right to vote, except as a holder or proxy.
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(j) Any meeting of holders of Securities duly called pursuant
to Section 14(c) or 14(d) hereof at which a quorum is present may be adjourned
from time to time by vote of the holders (or proxies for the holders) of a
majority in principal amount of the Securities represented at the meeting and
entitled to vote; and the meeting may be held as so adjourned without further
notice.
(k) The vote upon any resolution submitted to any meeting of
holders of Securities shall be by written ballots on which shall be subscribed
the signatures of the holders of Securities or of their representatives by
proxy and the serial number or numbers of the Securities held or represented by
them. The permanent chairperson of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in triplicate of all votes cast at the meeting. A
record, at least in triplicate, of the proceedings of each meeting of holders
of Securities shall be prepared by the secretary of the meeting and there shall
be attached to said record the original reports of the inspectors of votes on
any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was published as provided in Section 14(c) or 14(d)
hereof and, if applicable, Section 14(f) hereof. Each copy shall be signed and
verified by the affidavits of the chairperson and secretary of the meeting, and
one such copy shall be delivered to the Company and another to the Fiscal Agent
to be preserved by the Fiscal Agent, the copy delivered to the Fiscal Agent to
have attached thereto the ballots voted at the meeting. Any record so signed
and verified shall be conclusive evidence of the matters therein stated.
15. Merger, Consolidation or Sale of Assets.
(a) If at any time there shall be a merger, consolidation,
sale or conveyance of assets or assumption of obligations to which any of the
covenants contained in Section 6 of the Definitive Securities pertains, then in
any such event the successor or assuming corporation referred to therein will
promptly deliver to the Fiscal Agent:
(i) A certificate signed by an executive officer of such
successor or assuming corporation stating that as of the time
immediately after the effective date of any such transaction the
covenants of the Company contained in the Definitive Securities have
been complied with and the successor or assuming corporation is not
in default under the provisions of this Agreement or the Securities,
as applicable; and
-25-
27
(ii) A written opinion of legal counsel (who may be an
employee of or counsel to the successor or assuming corporation)
stating that in such counsel's opinion such covenants have been
complied with and that any instrument or instruments executed in the
performance of such covenants comply with the requirements thereof.
In case of any such merger, consolidation, sale, conveyance or
assumption, such successor or assuming corporation shall succeed to and be
substituted for the Company with the same effect, subject to (in the case of a
merger to which the Company is a party) Section 6(b) of the Definitive
Securities, as if it had been named herein and in the Definitive Securities as
the Company; the Company shall thereupon be relieved of any further obligation
or liability hereunder or upon the Securities, and the Company, as the
predecessor corporation, may thereupon or at any time thereafter be dissolved,
wound up or liquidated. If applicable, such successor or assuming corporation
thereupon may cause to be signed, and may issue either in its own name or in
the name of the Company any or all of the Securities issuable hereunder which
theretofore shall not have been executed on behalf of the Company and delivered
to the Fiscal Agent; and, upon the order of such successor or assuming
corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Agreement prescribed, the Fiscal Agent shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Fiscal Agent for
authentication, and any Securities which such successor or assuming corporation
thereafter shall cause to be signed and delivered to the Fiscal Agent for that
purpose. All the Securities so issued shall in all respects have the same
legal rank and benefit under this Agreement as the Securities theretofore or
thereafter issued in accordance with the terms of this Agreement as though all
of such Securities had been issued at the date of the execution hereof.
In case of any merger, consolidation, sale, conveyance or
assumption, such changes in phraseology and form (but not in substance) may be
made in the Securities thereafter to be issued as may be deemed by the Company
to be appropriate.
(b) The Fiscal Agent may rely on the documents delivered to it
pursuant to this Agreement by any successor or assuming corporation pursuant to
this Section 15 as conclusive evidence that any such merger, consolidation,
sale, conveyance or assumption complies with the provisions of this Section and
the Securities.
16. GOVERNING LAW. THIS AGREEMENT, THE SECURITIES AND ANY COUPONS
APPERTAINING THERETO SHALL BE GOVERNED BY AND
-26-
28
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE COMMONWEALTH OF MASSACHUSETTS,
UNITED STATES OF AMERICA.
17. Amendments. This Agreement may be amended by the parties
hereto, and certain provisions hereof may be waived, in the manner provided in
Section 9 of the Definitive Securities. This Agreement may also be amended by
the parties hereto, without the consent of the holder of any Security, for the
purposes set forth in Section 9 of the Definitive Securities and for the
purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective provision contained herein or in any manner that the parties may
mutually deem necessary or desirable, and that shall not adversely affect the
interests of the holders of the Securities.
18. Agent for Service of Process. As long as any of the Securities
or coupons appertaining thereto remain outstanding, the Company will at all
times have an authorized agent in the United States of America, upon whom
process may be served in any legal action or proceeding arising out of or
relating to this Agreement or any Security or any coupons appertaining thereto.
Service of process upon such agent and written notice of such service mailed or
delivered to the Company shall to the extent permitted by law be deemed in
every respect effective service of process upon the Company in any such legal
action or proceeding. The Company hereby appoints the Fiscal Agent as its
agent for such purpose, and covenants and agrees that service of process in any
legal action or proceeding may be made upon it at the office of such agent at
111 Westminster Street, Providence, Rhode Island 02903 Attention: Corporate
Trust Department (or such other address as may be the principal corporate trust
office of such agent, or such other address as may be the principal corporate
trust office of any successor fiscal agent located in the City of New York),
unless and until the Company shall designate another agent for such purpose by
written notice to the Fiscal Agent. If the Fiscal Agent receives any such
service of process, it shall promptly notify the Company of such service.
19. Notices.
All notices hereunder shall be deemed to have been given when
deposited in the mail as first class mail, registered or certified, return
receipt requested, postage prepaid, addressed to any party hereto as follows:
-27-
29
Address
-------
The Company 128 Technology Center
Waltham, Massachusetts 02154
Attn: President
The Fiscal Agent 111 Westminster Street
Providence, Rhode Island 02903
Attn: Vice President
Corporate Trust
The Paying Agent 111 Westminster Street
Providence, Rhode Island 02903
Attn: Vice President
Corporate Trust
or at any other address of which any of the foregoing shall have notified the
others in writing.
Notices to holders of the Securities shall be given by
publication in an Authorized Newspaper. For purposes of this Agreement, the
term "Authorized Newspaper" means a newspaper customarily published on each
business day in morning editions, whether or not it shall be published in
Saturday, Sunday or holiday editions, such as The Wall Street Journal (Eastern
edition) in Providence, Rhode Island or The City of New York, the Financial
Times in London and, so long as the Securities are listed on the Luxembourg
Stock Exchange, the Luxemburger Wort in Luxembourg. If by reason of the
temporary or permanent suspension of publication of any newspaper or by reason
of any other cause it shall be impossible to make publication of such notice in
an Authorized Newspaper as herein provided, then such publication or other
notice in lieu thereof as shall be made by the Fiscal Agent shall constitute
sufficient publication of such notice, if such publication or other notice
shall, so far as may be possible approximate the terms and conditions of the
publication in lieu of which it is given. Notices will be mailed to registered
holders of Registered Securities at their registered address as the same shall
appear on the books of the Fiscal Agent on the day fifteen days prior to such
mailing. The Fiscal Agent shall promptly furnish to the Company and to each
other paying agency of the Company a copy of each notice so published or
mailed.
20. Counterparts. This Agreement may be executed in separate
counterparts, and by each party separately in a separate counterpart, each such
counterpart, when so executed and delivered, to be an original. Such
counterparts shall together constitute but one and the same instrument.
-28-
30
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
MEDITRUST
By:
Name:
Title:
Fleet National Bank, as Fiscal Agent
By:
Name:
Title:
-29-
31
EXHIBIT A
32
(FORM OF FACE OF REGISTERED DEBENTURE)
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO U.S. PERSONS EXCEPT IN A
TRANSACTION NOT SUBJECT TO THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
Each purchaser, by its purchase of this Security, represents, acknowledges
and agrees that: (1) it is purchasing "restricted" securities which have not
been registered under the Securities Act; (2) if it should decide to dispose of
any of such Securities, it will not offer, sell, transfer, pledge, hypothecate
or otherwise dispose of any of such Securities except (A) pursuant to Rule 144A
under the Securities Act, (B) pursuant to Regulation S under the Securities
Act, (C) to a sophisticated institutional investor approved as an "accredited
investor" (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the
Securities Act by a broker or dealer registered under Section 15 of the
Securities Exchange Act of 1934, (D) pursuant to any other exemption from, or
otherwise in a transaction not subject to, the registration requirements of the
Securities Act as confirmed in an opinion of U.S. counsel or (E) pursuant to an
effective registration statement under the Securities Act, in each case in
accordance with any applicable state laws of the United States governing the
offer or sale of securities.
33
MEDITRUST
(Organized in the Commonwealth of Massachusetts)
6-7/8% CONVERTIBLE DEBENTURE DUE 1998
No. R-_______________ U.S. $_______________
Meditrust, a business trust duly organized and existing under the laws of
the Commonwealth of Massachusetts (the "Company"), for value received, hereby
promises to pay to ________, or registered assigns, the principal sum of
__________ Thousand United States Dollars on November 15, 1998 and to pay
interest thereon, from November 15, 1993, or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semiannually
in arrears on May 15 and November 15, in each year (each an "Interest Payment
Date"), commencing May 15, 1994, at the rate of 6-7/8% per annum until the
principal hereof is paid or made available for payment. Interest hereon shall
be calculated on the basis of a 360 day year comprised of twelve 30 day months.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Fiscal Agency Agreement, be paid
to the person in whose name this Security is registered at the close of
business on the Record Date for such interest, which shall be May 1 or November
1 (whether or not a Business Day) next preceding such Interest Payment Date.
Except as otherwise provided in the Fiscal Agency Agreement, any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the holder on such Record Date and may be paid at any time in any lawful
manner, all as more fully provided in the Fiscal Agency Agreement. Payment of
interest on this Security shall be made by United States dollar check drawn on
a bank in The City of New York and mailed to the person entitled thereto at his
address as it shall appear in the Security Register, or (if arrangements
satisfactory to the Company and the Fiscal Agent are made) by wire transfer to
a United States dollar account maintained by the payee with a bank in the City
of New York; provided, however, that if such mailing is not possible and no
such application shall have been made, payment of interest shall be made at the
Corporate Trust Office of the Fiscal Agent, or such other office or agency of
the Company as may be designated for such purpose in Providence, Rhode Island
or The City of New York, in United States currency.
Reference is hereby made to the further provisions of this Security set
forth under Terms and Conditions of the Securities on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth
at this place.
This Security shall not become valid or enforceable for any purpose unless
and until the certificate of authentication hereon shall have been manually
signed by a duly authorized signatory of the Fiscal Agent.
34
IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed in its name by the manual or facsimile signature of a duly authorized
signatory.
Dated: __________, 1993
MEDITRUST
By:
-------------------------------
Name:
------------------------------
Title:
-----------------------------
35
(FORM OF FACE OF BEARER DEBENTURE)
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
OFFERED OR SOLD WITHIN THE UNITED STATES OR TO U.S. PERSONS EXCEPT IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT.
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
MEDITRUST
(Organized in the Commonwealth of Massachusetts)
6-7/8% CONVERTIBLE DEBENTURE DUE 1998
No. B-________ U.S.$________
Meditrust, a business trust duly organized and existing under the laws of
the Commonwealth of Massachusetts (the "Company"), for value received, hereby
promises to pay to bearer upon presentation and surrender of this Security the
principal sum of ________________ United States Dollars on November 15, 1998,
and to pay interest thereon, from November 15, 1993 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually in arrears on May 15 and November 15 in each year (each an
"Interest Payment Date"), commencing May 15, 1994 , at the rate of 6-7/8% per
annum, until the principal hereof is paid or made available for payment.
Interest hereon shall be calculated on the basis of a 360 day year comprised of
twelve 30 day months. Such payments shall be made in such coin or currency of
the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, subject to any laws or regulations
applicable thereto and to the right of the Company (limited as provided in the
Fiscal Agency Agreement) to terminate the appointment of any paying agency, at
the main offices of Fleet National Bank or Banque Generale du Luxembourg, 27
Avenue Monterey, L-2951 Luxembourg or at such other offices or agencies outside
the United States of America, its territories or possessions as the Company may
designate, by United States dollar check drawn on a bank in the City of New
York, or (if arrangements satisfactory to the Company and the Fiscal Agent are
made) by wire transfer to a United States dollar account maintained by the
holder at a bank outside the United States, its territories and its
possessions. Interest on this Security shall be paid only at an office or
agency located outside the United States, its territories or possessions and,
in the case of interest due on or before maturity, only upon presentation and
36
surrender at such an office or agency of the interest coupons hereto attached
as they severally mature. No payment on this Security or any coupon will be
made at the Corporate Trust Office of the Fiscal Agent or any other paying
agency maintained by the Company in the United States, nor will any payment be
made by transfer to an account in, or by mail to an address in, the United
States, except as may be permitted by United States tax laws and regulations in
effect at the time of such payment without detriment to the Company.
Notwithstanding the foregoing, payment of this Security and coupons may be made
at the office of the Fiscal Agent in Providence, Rhode Island or The City of
New York if full payment at all paying agencies outside the United States is
illegal or effectively precluded by exchange controls or other similar
restrictions.
Reference is hereby made to the further provisions of this Security set
forth under Terms and Conditions of the Securities on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth
at this place.
Neither this Security nor any of the coupons attached hereto shall become
valid or enforceable for any purpose unless and until the certificate of
authentication hereon shall have been manually signed by a duly authorized
signatory of the Fiscal Agent.
IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed in its name by the manual or facsimile signature of a duly authorized
officer and coupons bearing the facsimile signature of a duly authorized
signatory to be annexed hereto.
Dated: __________, 1993
MEDITRUST
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
37
(FORM OF FACE OF COUPON ON BEARER DEBENTURES)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
MEDITRUST
6-7/8% CONVERTIBLE DEBENTURE DUE 1998
U.S.$_____________
Due 1998
Unless the Security to which this coupon appertains shall have been called
for redemption prior to the due date hereof and payment thereof duly provided
for or converted or exchanged, on the date set forth hereon, Meditrust (herein
called the "Company") will pay to bearer, upon surrender hereof, the amount
shown hereon (together with any Additional Amount in respect thereof which the
Company may be required to pay according to the terms of said Security) at the
paying agencies set out on the reverse hereof or at such other places outside
the United States of America, its territories and possessions as the Company
may determine from time to time, by United States dollar check drawn on a bank
in The City of New York, or (if arrangements satisfactory to the Company and
the Fiscal Agent referred to in the Security to which this coupon appertains
are made) wire transfer to a United States dollar account maintained by the
payee at a bank outside the United States of America, its territories and
possessions, being one-half year's interest then payable on said Security.
MEDITRUST
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
38
[Reverse of Coupon]
Fleet Bank of Massachusetts, N.A. Banque Generale du Luxembourg
40-41 St. Andrews Hill 27 Avenue Monterey
London EC4V 5DE L-2951 Luxembourg
England
39
CERTIFICATE OF AUTHENTICATION
This is one of the Securities described in the within-mentioned Fiscal
Agency Agreement.
Fleet National Bank, as Fiscal Agent
By:
-------------------------------
Authorized Signatory
40
Terms and Conditions of the Securities
1. General.
(a) This Security is one of a duly authorized issue of Securities of the
Company designated as its 6-7/8% Convertible Debentures due 1998 (herein called
the "Securities"), limited in aggregate principal amount to U.S.$86,250,000.
The Company, for the benefit of the holders from time to time of the
Securities, has entered into a Fiscal Agency Agreement dated as of November 15,
1993 (the "Fiscal Agency Agreement"), between the Company and Fleet National
Bank, as Fiscal Agent, Paying Agent, Security Registrar and Conversion Agent
(the "Fiscal Agent"), to which Fiscal Agency Agreement reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Fiscal Agent, and the holders of
Securities and any coupons appertaining thereto and of the terms upon which the
Securities are, and are to be, authenticated and delivered. The holders of the
Securities will be entitled to the benefits of, be bound by, and be deemed to
have notice of, all of the provisions of the Fiscal Agency Agreement. A copy
of the Fiscal Agency Agreement is on file and may be inspected at the offices
of paying agencies appointed by the Company.
(b) The Securities are issuable as bearer Securities (the "Bearer
Securities"), with interest coupons attached, in the denominations of U.S.
$1,000 and U.S. $10,000, and as registered Securities (the "Registered
Securities"), without coupons, in denominations of U.S. $1,000 and integral
multiples thereof. The Registered Securities, and transfers thereof, shall be
registered as provided in Section 8 hereof and in the Fiscal Agency Agreement.
The holder of any Bearer Security or any coupon and the registered holder of a
Registered Security shall (to the fullest extent permitted by applicable law)
be treated at all times, by all persons and for all purposes as the absolute
owner of such Security or coupon, as the case may be, regardless of any notice
of ownership, theft or loss or of any writing thereon.
(c) The Securities are direct and unsecured obligations of the Company.
There are no restrictions herein on other indebtedness or securities which may
be incurred or issued by the Company.
2. Additional Amounts.
The Company will pay, as additional interest ("Additional Amounts"), to
the holder of this Security or of any coupon appertaining hereto who is a
United States Alien (as defined below) such amounts as may be necessary in
order that every net
41
payment of the principal of (and premium, if any) and interest on this
Security, after withholding for or on account of any present or future tax,
assessment or other governmental charge imposed upon or as a result of such
payment by the United States or any political subdivision or taxing authority
thereof or therein, will not be less than the interest provided herein or any
coupon appertaining hereto to be then due and payable; provided, however, that
the foregoing obligation to pay Additional Amounts shall not apply to:
(a) any tax, assessment or other governmental charge which would not
have been so imposed but for (i) the existence of any present or former
connection between such holder (or between a fiduciary, settlor or
beneficiary of, or a person holding a power over, such holder, if such
holder is an estate or trust, or a member of such holder, if such holder
is a partnership) and the United States, including, without limitation,
such holder (or such fiduciary, settlor, beneficiary, person holding a
power or member) being or having been a citizen or resident or treated as
a resident thereof or being or having been engaged in a trade or business
therein or being or having been present therein or having or having had a
permanent establishment therein, (ii) such holder's present or former
status as a personal holding company, foreign personal holding company,
passive foreign investment company, foreign private foundation or other
foreign tax-exempt entity or controlled foreign corporation for United
States tax purposes or a corporation which accumulates earnings to avoid
United States Federal income tax, or (iii) such holder's status as a bank
extending credit pursuant to a loan agreement entered into in the ordinary
course of business;
(b) any tax, assessment or other governmental charge which would not
have been so imposed but for the presentation by the holder of this
Security or any coupon appertaining hereto for payment on a date more than
10 days after the date on which such payment became due and payable or on
the date on which payment thereof is duly provided, whichever occurs
later;
(c) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or other governmental charge;
(d) any tax, assessment or other governmental charge which would not
have been imposed but for the failure to comply with certification,
information, documentation or other reporting requirements concerning the
nationality, residence, identity or present or former connection with the
United States of the holder or beneficial owner of such Security or any
related coupon if such compliance is required by statute, regulation or
ruling of the United
42
States or any political subdivision or taxing authority thereof or therein
as a precondition to relief or exemption from such tax, assessment or
other governmental charge;
(e) any tax, assessment or other governmental charge which is
payable otherwise than by withholding from payments of principal of and
premium, if any, or interest on this Security;
(f) any tax, assessment or other governmental charge imposed on
interest received by a person holding, actually or constructively, 10
percent or more of the total combined voting power of all classes of stock
of the Company entitled to vote; or
(g) any tax, assessment or other governmental charge required to be
withheld by any paying agent from any payment of principal of and premium,
if any, or interest on any Security or interest on any coupon appertaining
thereto if such payment can be made without such withholding by any other
paying agent;
nor shall Additional Amounts be paid with respect to any payment of the
principal of and premium, if any, or interest on this Security to a person
other than the sole beneficial owner of such payment to the extent such
beneficial owner would not have been entitled to the Additional Amounts had
such beneficial owner been the holder of this Security or any coupon
appertaining hereto.
The term "United States Alien" means any person who, for United States
Federal income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust, or a
foreign partnership to the extent one or more of the members of which is, for
United States Federal income tax purposes, a foreign corporation, a
non-resident alien individual or a non-resident alien fiduciary of a foreign
estate or trust, and the term "United States" means the United States of
America, its territories and possessions.
Except as specifically provided herein and in the Fiscal Agency Agreement,
the Company shall not be required to make any payment with respect to any tax,
assessment or other governmental charge imposed by any government or any
political subdivision or taxing authority thereof or therein.
3. Redemption.
(a) The Securities are subject to redemption as necessary for the Company
to continue to qualify for United States Federal tax treatment as a real estate
investment trust under section 856(a)(6) of the Internal Revenue Code of the
United States of America at a redemption price equal to 100% of the principal
amount, together with accrued interest to the date fixed for
43
redemption. Provisions of this Security that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Company shall notify the Fiscal Agent promptly of specific outstanding
Securities to be called for redemption. Notwithstanding any other provision of
this Section 3, with respect to redemptions, this Security will be immediately
redeemable, at the option of and upon notice by the Company to the extent
deemed sufficient in the opinion of the Company's Board of Trustees to prevent
the holder hereof or any other person having an interest herein if this
Security were thereupon converted from being deemed to own shares of beneficial
interest of the Company ("Shares") in excess of the limits prescribed in
Article VI, Section 6.15 of the Company's Restated Declaration of Trust, as
amended.
(b) If, at any time, the Company shall determine that as a result of any
change in or amendment to the laws (or any regulations or rulings promulgated
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein affecting taxation, or any amendment to or change
in an official application or interpretation of such laws, regulations or
rulings which change or amendment becomes effective on or after November 15,
1993 the Company has or will become obligated to pay to the holder of any
Security or coupon Additional Amounts and such obligation cannot be avoided by
the Company taking reasonable measures available to it, then the Company may,
at its election exercised at any time when such conditions continue to exist,
redeem the Securities as a whole at a redemption price equal to 100% of the
principal amount, together with accrued interest, if any, to the date fixed for
redemption; provided that no such notice of redemption shall be given earlier
than 90 days prior to the earliest date on which the Company would be obliged
to pay such Additional Amounts were a payment in respect of this Security then
due; and provided further, that at the time such notice is given, such
obligation to pay such Additional Amounts remains in effect.
Prior to any redemption of the Securities pursuant to the preceding
paragraph, the Company shall provide the Fiscal Agent with one or more
certificates (signed by the President or any Vice President and the Treasurer
or the Secretary) of the Company on which the Fiscal Agent may conclusively
rely to the effect that the Company is entitled to redeem the Securities
pursuant to such paragraph and that the conditions precedent to the right of
the Company to redeem the Securities pursuant to such paragraph have occurred
and a written opinion of counsel (who may be an employee of the Company)
stating that all legal conditions precedent to the right of the Company to
redeem the Securities pursuant to such paragraph have occurred.
(c) The Company shall, except as set forth in the succeeding paragraph,
redeem the Securities as a whole but not in part, at 100% of their principal
amount, together with interest accrued to the date fixed for redemption, after
determining,
44
based on a written opinion of counsel, that any certification, identification
or information reporting requirement of United States law or regulation with
regard to the nationality, residence or identity of a beneficial owner of a
Bearer Security or a coupon appertaining thereto who is a United States Alien
(as defined in Section 2 hereof) would be applicable to a payment of principal
of, premium, if any, or interest on a Bearer Security or a coupon appertaining
thereto made outside the United States by the Company or a paying agent (other
than a requirement (a) which would not be applicable to a payment made (i)
directly to the beneficial owner or (ii) to a custodian, nominee or other agent
of the beneficial owner, or (b) which could be satisfied by the holder,
custodian, nominee or other agent certifying that the beneficial owner is a
United States Alien, provided, however, in each case referred to in clauses
(a)(ii) and (b) payment by such custodian, nominee or agent to the beneficial
owner is not otherwise subject to any requirement referred to in this
sentence). The Company shall make such determination and will notify the
Fiscal Agent thereof in writing as soon as practicable, stating in the notice
the effective date of such certification, identification, or information
reporting requirement and the dates within which the redemption shall occur,
and the Fiscal Agent shall give prompt notice of such redemption in accordance
with the Fiscal Agency Agreement. The Company shall determine the redemption
date by notice to the Fiscal Agent at least 75 days before the redemption date,
unless shorter notice is acceptable to the Fiscal Agent. Such redemption of
the Securities must take place on such date, not later than one year after the
publication of the initial notice of the Company's determination of the
existence of such certification, identification or information reporting
requirement. The Company shall not so redeem the securities, however, if the
Company shall, based on a subsequent event, determine, based on a written
opinion of counsel, not less than 30 days prior to the date fixed for
redemption, that no payment would be subject to any requirement described
above, in which case the Company shall notify the Fiscal Agent, which shall
give prompt notice of that determination in accordance with the Fiscal Agency
Agreement, and any earlier redemption notice shall thereupon be revoked and of
no further effect and the Fiscal Agent shall have no liability whatsoever to
the Company or to the holders of Securities with respect thereto.
Notwithstanding the preceding paragraph, if and so long as the
certification, identification or information reporting requirement referred to
in the preceding paragraph would be fully satisfied by payment of United States
withholding, backup withholding or similar taxes, the Company may elect, prior
to the giving of the notice of redemption, to have the provisions of this
paragraph apply in lieu of the provisions of the preceding paragraph. In that
event, the Company will pay such Additional Amounts (without regard to Section
2 hereof) as are necessary in order that, following the effective date of such
requirements, every net payment made outside the United States by the Company
45
or a paying agent of the principal of, premium, if any, and interest on a
Bearer Security or a coupon appertaining thereto to a holder who is a United
States Alien (without regard to a certification, identification or information
reporting requirement as to the nationality, residence or identity of such
holder), after deduction for United States withholding, backup withholding or
similar taxes (other than withholding, backup withholding or similar taxes (i)
which would not be applicable in the circumstances referred to in the
parenthetical clauses of the first sentence of the next preceding paragraph or
(ii) are imposed as a result of presentation of such Bearer Security or coupon
for payment more than 10 days after the date on which such payment becomes due
and payable or on which payment thereof is duly provided for, whichever is
later), will not be less than the amount provided in the Bearer Security or the
coupon to be then due and payable. If the Company elects to pay such
Additional Amounts and as long as it is obligated to pay such Additional
Amounts, the Company may subsequently redeem the Securities, at any time, in
whole but not in part, upon not more than 60 days nor less than 30 days notice,
at 100% of their principal amount, plus accrued interest to the date fixed for
redemption and Additional Amounts, if any.
(d) Notice of redemption will be given by publication in Authorized
Newspapers (as defined in the Fiscal Agency Agreement) in The City of New York
and in London, and, so long as the Securities are listed on the Luxembourg
Stock Exchange, in Luxembourg, and by mail to holders of Registered Securities,
in each case in the English language, all as provided in the Fiscal Agency
Agreement. In the case of a redemption in whole at the option of the Company,
notice will be given once not more than 60 nor less than 30 days prior to the
date fixed for redemption. In the case of a partial redemption at the option
of the Company, notice will be given twice, the first such notice to be given
not more than 75 or less than 60 days prior to the date fixed for redemption
and the second such notice to be given not more than 60 or less than 30 days
prior to the date fixed for redemption. Neither the failure to give notice nor
any defect in any notice given to any particular holder of a Security shall
affect the sufficiency of any notice with respect to other Securities.
Notices relating to the redemption of Securities whether at the option of
the Company or the holder thereof shall specify: the date fixed for redemption
or the Holder Redemption Date, as the case may be; the redemption price; the
place or places of payment; that payment will be made upon presentation and
surrender of the Securities to be redeemed, together, in the case of a Bearer
Security, with all appurtenant coupons, if any, maturing subsequent to the date
fixed for redemption; that interest accrued to the date fixed for redemption
(unless the redemption date is an interest payment date) will be paid as
specified in said notice; and that on and after said date interest thereon will
cease to accrue. In the case of a redemption in part at the option of the
Company, notices shall
46
specify the aggregate principal amount of Securities to be redeemed and the
aggregate principal amount of Securities outstanding after such partial
redemption. The first notice shall specify the last date on which exchanges or
transfers of Securities may be made, and the second notice shall specify the
serial numbers of the Securities and the portions thereof called for
redemption. In the case of a redemption in whole or in part by the Company,
notices shall specify the date the conversion privilege expires in accordance
with Section 4(a) hereof. Such notices shall also state that the conditions
precedent, if any, to such redemption have occurred (and the Company shall so
certify to the Fiscal Agent) and the last day for surrender of the Securities
being redeemed.
(e) If notice of redemption has been given in the manner set forth in
Section 3(d) hereof with respect to Securities to be redeemed at the option of
the Company, the Securities so to be redeemed shall become due and payable on
the applicable redemption date specified in such notice and upon presentation
and surrender of the Securities at the place or places specified in the notice
given by the Fiscal Agent on behalf of the Company with respect to such
redemption, together in the case of Bearer Securities with all appurtenant
coupons, if any, maturing subsequent to the redemption date, the Securities
shall be paid and redeemed by the Company, at the places and in the manner and
currency herein specified and at the redemption price together with accrued
interest, if any, to the redemption date; provided, however, that interest due
in respect of coupons maturing on or prior to the redemption date shall be
payable only upon the presentation and surrender of such coupons (at an office
or agency located outside of the United States of America). If any Bearer
Security surrendered for redemption shall not be accompanied by all appurtenant
coupons maturing after the redemption date, such Security may be paid after
deducting from the amount otherwise payable an amount equal to the face amount
of all such missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Fiscal Agent if they are furnished with
such security or indemnity as they may require to save each of them and each
other paying agency of the Company harmless. From and after the redemption
date, if monies for the redemption of Securities shall have been available at
the principal corporate trust office of the Fiscal Agent for redemption on the
redemption date, the Securities shall cease to bear interest, the coupons for
interest appertaining to Bearer Securities maturing subsequent to the
redemption date shall be void, and the only right of the holders of such
Securities shall be to receive payment of the redemption price together with
accrued interest to the redemption date if the redemption date is an interest
payment date. If monies for the redemption of the Securities are not made
available for payment until after the redemption date, the Securities shall not
cease to bear interest until such monies have been so made available.
47
4. Conversion.
(a) Subject to and upon compliance with the provisions of the Fiscal
Agency Agreement, a holder of Securities is entitled, at his option, at any
time on or after the Exchange Date (as defined in the Fiscal Agency Agreement)
and on or before the close of business on November 15, 1998, or in case a
Security or a portion thereof is called for redemption by the Company, or the
holder thereof elects to have such Security or a portion thereof redeemed by
the Company pursuant to Section 3(d) hereof, then in respect of such Security
or such portion thereof until and including, but (unless the Company defaults
in making the payment due upon redemption) not after, the close of business on
the date fixed for redemption, to convert such Security (or any portion of the
principal amount thereof which is U.S. $1,000 or an integral multiple thereof),
at the principal amount thereof, or of such portion, into fully paid and
nonassessable Shares (calculated as to each conversion to the nearest 1/1000 of
a Share) at a Conversion Price equal to U.S. $37.125 aggregate principal amount
of Securities for each Share (the "Conversion Price") (or at the current
adjusted Conversion Price if an adjustment has been made as provided herein) by
surrender of the Security, or in the case of a Security submitted for
redemption pursuant to Section 3(d) hereof, satisfactory evidence of such
submission, together with (i) if a Bearer Security, all unmatured coupons and
any matured coupons in default appertaining thereto, and if a Registered
Security (if so required by the Company or the Fiscal Agent), instruments of
transfer in form satisfactory to the Company and the Fiscal Agent, duly
executed by the registered holder or by his duly authorized attorney and (ii)
the conversion notice hereon duly executed (a) at the Corporate Trust Office of
the Fiscal Agent, or at such other office or agency of the Company as may be
designated by it for such purpose in the City of New York, or (b) subject to
any laws or regulations applicable thereto and subject to the right of the
Company to terminate the appointment of any such conversion agency, at the
offices of Fleet National Bank, and Banque Generale du Luxembourg, 27 Avenue
Monterey, L-2951 Luxembourg, or at such other offices or agencies as the
Company may designate. Notwithstanding the foregoing, a holder may not convert
any Security, and such Security shall not be convertible by any holder, if as a
result of such conversion any person would then be deemed to own Shares in
excess of the limits prescribed in Article VI, Section 6.15 of the Company's
Restated Declaration of Trust, as amended, provided that the Company shall
notify the Fiscal Agent from time to time with respect to the number of Shares
that would exceed such limits.
(b) In the case of any Registered Security which is converted after any
Record Date and on or prior to the next succeeding Interest Payment Date (other
than any Registered Security whose maturity is prior to such Interest Payment
Date), interest that is payable on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such
interest shall be paid to the person in
48
whose name that Registered Security is registered at the close of business on
such Record Date. Except as otherwise provided in the immediately preceding
sentence, no payment or adjustment shall be made upon any conversion on account
of any interest accrued on the Securities surrendered for conversion or on
account of any dividends on the Shares issued upon conversion. Registered
Securities surrendered for conversion during the period after the close of
business on any Record Date next preceding any Interest Payment Date to the
close of business on such Interest Payment Date shall (except in the case of
Registered Securities or portions thereof which are called for redemption on a
redemption date within such period) be accompanied by payment of any amount
equal to interest payable on such Interest Payment Date on the principal amount
being surrendered for conversion. No fractions of shares or scrip representing
fractions of shares will be issued or delivered on conversion, but instead of
any fractional interest the Company shall pay a cash adjustment as provided in
the Fiscal Agency Agreement.
(c) (i) In case at any time the Company shall pay or make a stock
dividend or other distribution (payable otherwise than in cash out of its
retained earnings) on any class of equity securities of the Company in Shares,
the Conversion Price in effect at the opening of business on the day following
the date fixed for the determination of stockholders entitled to receive such
dividend or other distribution shall be reduced so that the same shall equal
the price determined by multiplying such Conversion Price by a fraction of
which the numerator shall be the number of Shares outstanding at the close of
business on the date fixed for such determination and the denominator shall be
the sum of such number of shares and the total number of shares constituting
such dividend or other distribution, such adjustment to become effective
immediately after the opening of business on the day following the date fixed
for such determination.
(ii) In case at any time the Company shall (A) subdivide its
outstanding Shares, (B) combine its outstanding Shares into a smaller number of
shares, or (C) issue by reclassification of its Shares (including any such
reclassification in connection with a consolidation or merger in which the
Company is the continuing corporation) any shares, the Conversion Price in
effect at the effective date of such subdivision, combination or
reclassification shall be proportionately adjusted so that the holder of any
Security surrendered for conversion after such time shall be entitled to
receive the aggregate number and kind of shares which, if such Security had
been converted immediately prior to such time, he would have owned upon such
conversion and been entitled to receive upon such subdivision, combination or
reclassification. Such adjustment shall be made successively whenever any
event listed above shall occur.
49
(iii) In case at any time the Company shall fix a record date for
the issuance of rights or warrants to all holders of its Shares entitling them
to subscribe for or purchase Shares at a price per share less than the current
market price per Share (determined as provided in paragraph (v) of this
subsection (c)) on such record date, the Conversion Price in effect at the
opening of business on the day following such record date, shall be reduced so
that the same shall equal the price determined by multiplying such Conversion
Price by a fraction of which the numerator shall be the number of Shares
outstanding at the close of business on such record date plus the number of
Shares which the aggregate of the offering price of the total number of Shares
so offered for subscription or purchase would purchase at such current market
price and the denominator shall be the number of Shares outstanding at the
close of business on such record date plus the number of Shares so offered for
subscription or purchase, such reduction to become effective immediately after
the opening of business on the day following such record date. Such reduction
shall be made successively whenever such a record date is fixed; and in the
event that such rights or warrants are not so issued, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in
effect if such record date had not been fixed.
(iv) In case at any time the Company shall fix a record date for the
making of a distribution, by dividend or otherwise, to all holders of its
Shares, or evidences of its indebtedness or assets (including securities, but
excluding (x) any dividend or distribution referred to in paragraph (i) of this
subsection (c), any rights or warrants referred to in paragraph (iii) of this
subsection (c), and (y) any dividend, return of capital or distribution paid in
cash out of the retained earnings of the Company), then in each such case the
Conversion Price in effect after such record date shall be determined by
multiplying the Conversion Price in effect immediately prior to such record
date by a fraction, of which the numerator shall be the total number of
outstanding Shares multiplied by the current market price per Share (as defined
in paragraph (v) of this subsection (c) on such record date, less the fair
market value (as determined by the Board of Directors of the Company, whose
determination shall be conclusive and described in a statement filed with the
Fiscal Agent) of the portion of the assets or evidences of indebtedness so to
be distributed, and of which the denominator shall be the total number of
outstanding Shares multiplied by such current market price per Share. Such
adjustment shall be made successively whenever such a record date is fixed; and
in the event that such distribution is not so made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
such record date has not been fixed.
(v) For the purpose of any computation under paragraphs (iii) and
(iv) of this subsection (c), the current market price per Share on any date
shall be deemed to be the
50
average of the Closing Prices for the 15 consecutive days upon which the
principal trading market for the Shares is open selected by the Company
commencing not less than 20 nor more than 30 days before the day in question.
The Closing Price for any day shall be the last reported sales prices regular
way or, in case no such reported sale takes place on such day, the average of
the reported closing bid and asked prices regular way, in either case on the
New York Stock Exchange or, if the Shares are not listed or admitted to trading
on such Exchange, on the principal national securities exchange on which the
Shares are listed or admitted to trading or, if not listed or admitted to
trading on any national securities exchange, the closing sale price quoted on
the NASDAQ National Market System, or if not so quoted, as determined by the
Company.
(vi) The Company may make such adjustments in the Conversion Price,
in addition to those required by paragraphs (i), (ii) and (iii) of this
section, as it considers to be advisable in order that any event treated for
United States Federal income tax purposes as a dividend of stock or stock
rights shall not be taxable to the recipients.
(vii) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least twenty-five
cents (U.S. $0.25) in such Conversion Price; provided, however, that any
adjustment which by reason of this paragraph (vii) is not required to be made
shall be carried forward and taken into account in any subsequent adjustment.
All calculations under this subsection (c) shall be made to the nearest cent or
to the nearest 1/1000 of a Share, as the case may be.
(d) Whenever the Conversion Price is adjusted and in the event of certain
other corporate actions, as herein provided, the Company shall notify the
Fiscal Agent and the Fiscal Agent shall notify the holders of Securities, all
as provided in Sections 7(f) and 19 of the Fiscal Agency Agreement.
(e) The Company shall, at all times from and after the date on which the
Securities are convertible into Shares, have reserved and available, free from
preemptive rights, out of its authorized but unissued Shares, for the purpose
of effecting the conversion of Securities, the full number of Shares then
issuable upon the conversion of all Securities. The Company covenants that all
Shares which may be issued or delivered upon conversion of Securities will upon
issuance be fully paid and nonassessable.
(f) In case of any consolidation with, or merger of the Company into, any
other corporation, or in case of any merger of another corporation into the
Company (other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding Shares of the Company), or
in case of any sale or transfer of all or substantially all of the assets of
the Company, the corporation formed by such consolidation or
51
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Fiscal Agent an amendment to the Fiscal Agency
Agreement providing that the holder of each Security shall have the right
during the period such Security shall be convertible as specified in section
(a) hereof to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer by a holder of the number of Shares of the Company into which
such Security might have been converted immediately prior to such
consolidation, merger, sale or transfer assuming, if such consolidation,
merger, sale or transfer is prior to the period such Security shall be
convertible as specified in subsection (a) hereof, that the Securities were
convertible at such time at the initial Conversion Price as adjusted from
November 15, 1993 to such time pursuant to paragraphs (i), (ii), (iii), (iv)
and (vi) of subsection (c) hereof. Such amendment shall provide for adjustments
which, for events subsequent to the effective date of such amendment, shall be
as nearly equivalent as may be practicable to the adjustments provided for
herein. The above provisions of this subsection shall similarly apply to
successive consolidations, mergers, sales or transfers.
5. Events of Default.
In the event that any of the following ("Events of Default") shall occur
and be continuing:
(a) the Company shall fail to pay when due the principal amount of any of
the Securities whether at maturity or upon redemption or otherwise; or
(b) the Company shall fail to pay any installment of interest or
Additional Amounts (as described in Section 2 hereof) on any of the Securities
for a period of 30 days after the date when due; or
(c) the Company shall fail duly to perform or observe any other term,
covenant or agreement contained in any of the Securities or in the Fiscal
Agency Agreement for a period of 60 days after the date on which written notice
of such failure, requiring the Company to remedy the same, shall first have
been given to the Company and the Fiscal Agent by the holders of at least 25%
in aggregate principal amount of the Securities at the time outstanding;
provided, however, that in the event the Company shall within the aforesaid
period of 60 days commence legal action in a court of competent jurisdiction
seeking a determination that the Company had not failed to duly perform or
observe the term or terms, covenant or covenants or agreement or agreements
specified in the aforesaid notice, such failure shall not be an Event of
Default unless the same continues for a period of 10 days after the date of any
final determination by such court to the effect that the Company had failed to
duly perform or observe one or more of such terms, covenants or agreements; or
52
(d) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case or proceeding
under any applicable bankruptcy, insolvency, reorganization or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of the Company or for
any substantial part of the property of it or ordering the winding-up or
liquidation of the affairs of it and such decree or order shall remain unstayed
and in effect for a period of 20 consecutive days; or
(e) the Company shall commence a voluntary case or proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case under any such law, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or for any substantial part
of its property, or shall make any general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts as they
become due or shall take any corporate action in furtherance of any of the
foregoing; or
(f) an event of default, as defined in any indenture or instrument
evidencing or under which the Company shall have outstanding at least
$10,000,000 (or its equivalent in another currency), in aggregate principal
amount of indebtedness for borrowed money, shall happen and be continuing and
such default shall involve the failure to pay the principal of such
indebtedness (or any part thereof), when due and payable after the expiration
of any applicable grace period with respect thereto, or such indebtedness shall
have been accelerated so that the same shall be or become due and payable prior
to the date on which the same would otherwise have become due and payable, and
failure to pay shall not have been cured by the Company within 30 days after
such failure or such acceleration shall not be rescinded or annulled within 30
days after notice thereof shall have first been given to the Company; provided
that if such event of default under such indenture or instrument shall be
remedied or cured by the Company or waived by the holders of such indebtedness,
then the Event of Default hereunder by reason thereof shall be deemed likewise
to have been thereupon remedied, cured or waived without further action upon
the part of any of the holders of Securities;
then the holder of this Security may, at such holder's option, declare the
principal of this Security and the interest accrued hereon (and Additional
Amounts under Section 2 hereof, if any, thereon) to be due and payable
immediately by written notice to the Company and the Fiscal Agent, and if any
such Event of Default shall continue at the time of receipt of such written
notice, the principal of this Security and the interest accrued hereon (and
Additional Amounts, if any, hereon) shall become
53
immediately due and payable, subject to the proviso of subsection (c) of this
Section 5. Upon payment of such amount of principal and interest (and
Additional Amounts pursuant to Section 2 hereof, if any), all of the Company's
obligations in respect of payment of principal of and interest on (and
Additional Amounts, if any, on) this Security shall terminate. Interest on
overdue principal and interest (and Additional Amounts, if any) shall accrue
from the date on which such principal and interest (and Additional Amounts, if
any) were due and payable to the date such principal and interest (and
Additional Amounts, if any) are paid or duly provided for, at the rate borne by
the Securities (to the extent payment of such interest shall be legally
enforceable).
If an Event of Default, as defined in this Section 5, with respect to the
Securities, or an event which would, with the passing of time or the giving of
notice, or both be an Event of Default, shall occur and be continuing, the
Company shall within two business days of becoming aware thereof notify the
Fiscal Agent in writing, of such Event of Default and the Fiscal Agent shall
thereupon promptly notify all of the holders of the Securities of such Event of
Default.
The Company shall provide to the Fiscal Agent on each anniversary of the
date hereof, a certificate to the effect that there is then existing no default
with respect to the Securities, as defined in this Section.
6. Merger, Consolidation, Sale, Conveyance or Assumption.
(a) The Company will not merge or consolidate with, or sell or convey all
or substantially all of its assets to, any other corporation (for purposes
hereof "corporation" shall include business trusts, limited partnerships,
business corporations and other business entities), unless (i) either (A) the
Company shall be the surviving corporation in the case of a merger or (B) (I)
the surviving, resulting or transferee corporation shall expressly assume the
due and punctual payment (including Additional Amounts pursuant to Section 2
hereof, if any) of all the Securities, according to their tenor, and the due
and punctual performance of all of the covenants and obligations of the Company
under the Securities, the coupons and the Fiscal Agency Agreement, by
supplemental agreement reasonably satisfactory to the Fiscal Agent, (II)
immediately after such merger, consolidation, sale or conveyance, the
Securities will not be subject to United States Federal estate tax as a result
thereof, if held by a person who at the time of death is not a citizen or
resident of the United States unless such successor corporation shall have
agreed, by supplemental agreement, to indemnify the persons liable therefor for
the amount of United States Federal estate tax attributable and paid in respect
of any Securities includable in the gross estate of a person who at the time of
death is not a citizen or resident of the United States or unless the
Securities would be subject to United States Federal estate tax immediately
prior to such merger,
54
consolidation, sale or conveyance if held by a person who at the time of death
is not a citizen or resident of the United States, and (III) the Fiscal Agent
shall have received the documentation required under Section 15(a) of the
Fiscal Agency Agreement, (ii) the surviving, resulting or transferee
corporation, if not organized and validly existing under the laws of the United
States, shall expressly agree to make payments under the Securities free of any
deduction or withholding for or on account of taxes, levies, imposts and
charges whatsoever imposed by or for the account of the jurisdiction where such
successor corporation is generally subject to taxation (or any political
subdivision or taxing authority thereof or therein) in a manner equivalent to
that set forth herein, subject to the exceptions contained in such forms of the
Securities, and (iii) the Company or such successor corporation, as the case
may be, shall not, immediately after such merger, consolidation, sale or
conveyance, be in default in the performance of any covenants or obligations of
the Company under the Securities or the Fiscal Agency Agreement. In
calculating the amount of tax attributable to any Securities for purposes of
sub-clause (II) above in accordance with the provisions of the Internal Revenue
Code of 1986, as amended, the gross estate of the decedent shall be deemed to
include only Securities issued under the Fiscal Agency Agreement.
(b) Upon any merger, consolidation, sale, conveyance or assumption as
provided in Section 6(a), the successor or assuming corporation shall succeed
to and be substituted for, and may exercise every right and power of and be
subject to all the obligations of, the Company under the Securities and Fiscal
Agency Agreement, with the same effect as if such successor or assuming
corporation had been named as the Company therein and herein and the Company
shall be released from its liability as obligor under the Securities and Fiscal
Agency Agreement.
7. INTENTIONALLY OMITTED.
8. Replacement, Transfer and Exchange of Securities.
(a) In case any Security shall at any time become mutilated, destroyed,
stolen or lost and such Security or evidence of the loss, theft or destruction
thereof (together with the indemnity hereinafter referred to and such other
documents or proof as may be required) shall be delivered to the Fiscal Agent,
a new Security of like tenor and date with appropriate interest coupons, if
any, will be issued by the Company in exchange for the Security so mutilated,
or in lieu of the Security so destroyed, stolen or lost, but, in the case of a
destroyed, stolen or lost Security only upon receipt of evidence satisfactory
to the Fiscal Agent and the Company that such Security was destroyed, stolen or
lost, and if required by the Fiscal Agent or the Company, upon receipt also of
indemnity satisfactory to the Fiscal Agent and the Company. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new
55
Security shall be borne by the owner of the Security so mutilated, destroyed,
stolen or lost.
(b) As provided in the Fiscal Agency Agreement and subject to certain
limitations therein set forth, Bearer Securities (with all unmatured coupons
appertaining thereto) are exchangeable at, subject to applicable laws and
regulations, the offices of the paying agencies in London and Luxembourg or as
designated by the Company for such purpose pursuant to the Fiscal Agency
Agreement, for an equal aggregate principal amount of Registered Securities
and/or Bearer Securities of authorized denominations, and Registered Securities
are exchangeable at the Corporate Trust Office of the Fiscal Agent in
Providence, Rhode Island or The City of New York or, subject to applicable laws
and regulations, the offices of the paying agencies in London and Luxembourg or
as designated by the Company for such purpose pursuant to the Fiscal Agency
Agreement, for an equal aggregate principal amount of Registered Securities of
authorized denominations as requested by the holder surrendering the same.
Registered Securities will not be exchangeable for Bearer Securities. The
Company shall not be required (a) to exchange Bearer Securities for Registered
Securities during the period between the close of business on any May 15 or
November 15 and the opening of business on the next succeeding interest payment
date, or (b) in the event of a redemption in part, (i) to register the transfer
of Registered Securities or to exchange Bearer Securities for Registered
Securities during a period of 15 days immediately preceding the date notice is
given identifying the serial numbers of the Securities called for such
redemption; (ii) to register the transfer of or exchange any such Registered
Securities, or portion thereof, called for redemption; or (iii) to exchange any
such Bearer Securities called for redemption; provided, however, that a Bearer
Security called for redemption may be exchanged for a Registered Security which
is simultaneously surrendered, with written instruction for payment on the date
fixed for redemption, unless the date fixed for redemption is during the period
between the close of business on any May 1 or November 1 and the close of
business on the next succeeding interest payment date, in which case such
exchange may only be made prior to the close of business on May 1 or November 1
immediately preceding the date fixed for redemption. The Company also shall
not be required to exchange Securities if, as a result thereof, the Company
would incur adverse consequences under United States Federal income tax laws in
effect at the time of such exchange. In the event of redemption or conversion
of a Registered Security in part only, a new Security or Securities for the
unredeemed or unconverted portion hereof will be issued in the name of the
holder thereof.
(c) The costs and expenses of effecting any exchange or registration of
transfer pursuant to the foregoing provisions, except for the expenses of
delivery by other than regular mail (if any) and except, if the Company shall
so require, the payment of a sum sufficient to cover any tax or other
governmental charge
56
or insurance charges that may be imposed in relation thereto, will be borne by
the Company.
(d) The Company has initially appointed as registrar and transfer agent
the Fiscal Agent acting through its principal corporate trust office in
Providence, Rhode Island. The Company has also initially appointed Banque
Generale du Luxembourg as a transfer agent. The Company may at any time
terminate the appointment of the registrar and transfer agent and appoint
additional or other registrars and transfer agents or approve any change in an
office through which the registrar or transfer agent acts; provided that, until
all of the Securities have been delivered to the Fiscal Agent for cancellation,
or monies sufficient to pay the Securities have been made available for payment
and either paid or returned to the Company as provided in the Securities, the
Company will maintain a registrar and a transfer agent in The City of New York
in the United States and in Luxembourg, so long as the Securities are
registered on the Luxembourg Stock Exchange.
(e) For purposes of the provisions of this Security and the Fiscal Agency
Agreement, any Security authenticated and delivered pursuant to the Fiscal
Agency Agreement shall, as of any date of determination, be deemed to be
"outstanding", except for:
(i) Securities previously converted, or canceled by the Fiscal Agent
or delivered to the Fiscal Agent for cancellation;
(ii) Securities which have been called for redemption by the Company
in accordance with Section 3 hereof or which have become due and payable at
maturity or otherwise and with respect to which monies sufficient to pay the
principal thereof and interest thereon shall have been made available to the
Fiscal Agent; or
(iii) Securities in lieu of or in substitution for which other
Securities have been authenticated and delivered pursuant to the Fiscal Agency
Agreement; provided, however, that in determining whether the holders of the
requisite principal amount of outstanding Securities are present at a meeting
of holders of Securities for quorum purposes or have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any subsidiary thereof shall be disregarded and deemed not to
be outstanding.
9. Modifications and Amendments.
(a) Without the consent of any holders of Securities or coupons,
modifications of or amendments to the Fiscal Agency Agreement may be made for
any of the following purposes:
57
(i) to evidence the succession of another corporation to the
Company in accordance with Section 6 hereof and the assumption by any such
successor of the covenants of the Company in the Fiscal Agency Agreement or the
Securities;
(ii) to add to the covenants of the Company for the benefit of the
holders of Securities or coupons, or to surrender any right or power herein
conferred upon the Company;
(iii) to permit payment of principal and interest on Bearer
Securities in the United States, provided that such payment is permitted by
United States tax laws and regulations then in effect;
(iv) to make provision with respect to the conversion rights of
holders of Securities pursuant to Section 4(f) hereof;
(v) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein; and
(vi) to make any other provisions with respect to matters or
questions arising under this Security or the Fiscal Agency Agreement, provided
such action pursuant to this clause (vi) shall not adversely affect the
interests of the holders of Securities or coupons.
(b) Modifications and amendments to the Fiscal Agency Agreement or to
these Securities may be made, and future compliance with or past default by the
Company under any of the provisions thereof may be waived, with the consent of
the holders of at least a majority in aggregate principal amount of the
Securities at the time outstanding, or of such lesser percentage as may act at
a meeting of holders of Securities held in accordance with the provisions set
forth herein; provided, that no such modification, amendment or waiver may,
without the consent of the holder of each such Security affected thereby:
(i) waive a default in the payment of the principal of or interest
on any Security;
(ii) change the stated maturity of the principal of or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or change the obligation of the Company
to pay Additional Amounts pursuant to Section 2 hereof (except as permitted by
subsection (a) of this Section 9), or change the coin or currency in which any
Security or the interest thereon is payable, or convert any Securities as
provided in Sections 3 and 4, respectively.
(iii) reduce the requirements of Section 10 hereof for quorum or
voting, or reduce the percentage in principal amount of the outstanding
Securities the consent of whose holders is required for any amendment or
modification of the Fiscal Agency
58
Agreement or the Terms and Conditions of the Securities or the consent of whose
holders is required for any waiver (of compliance with certain provisions of
the Fiscal Agency Agreement or the Securities or certain defaults hereunder and
thereunder and their consequences) provided for in these Terms and Conditions;
(iv) change the obligation of the Company to maintain an office or
agency in the City of New York and outside the United States; or
(v) modify any of the provisions of this Section except to increase
any such percentage or to provide that certain other provisions of the Fiscal
Agency Agreement or the Securities cannot be modified or waived without the
consent of the holder of each outstanding Security affected thereby.
It shall not be necessary for any act of holders of Securities under this
Section to approve the particular form of any proposed amendment, modification
or waiver, but it shall be sufficient if such act shall approve the substance
thereof. Any modifications, amendments or waivers to the Fiscal Agency
Agreement or to these Terms and Conditions will be conclusive and binding on
all holders of the Securities, whether or not they have given such consent or,
were present at such meeting, and on all holders of coupons, whether or not
notation of such modifications, amendments or waivers is made upon the
Securities or coupons, and on all future holders of Securities and coupons.
Any instrument given by or on behalf of any holder of a Security in connection
with any consent to any such modification, amendment or waiver will be
irrevocable once given and will be conclusive and binding on all subsequent
holders of such Security.
10. Meetings and Votes of Holders.
(a) A meeting of holders of Securities may be called at any time and from
time to time pursuant to this Section for any of the following purposes: (i)
to give any notice to the Company or to the Fiscal Agent, or to give any
directions to the Fiscal Agent, or to consent to the waiving of any default
hereunder and its consequences, or to take any other action authorized to be
taken by holders of Securities pursuant to these Terms and Conditions; or (ii)
to take any other action authorized to be taken by or on behalf of the holders
of any specified aggregate principal amount of the Securities under any other
provision of the Fiscal Agency Agreement, under applicable law or under these
Terms and Conditions.
(b) Meetings of holders of Securities may be held at such place or places
in Providence, Rhode Island or The City of New York or London as the Fiscal
Agent or, in case of its failure to act, the Company or the holders calling the
meeting shall from time to time determine.
59
The Fiscal Agent may at any time call a meeting of holders of the
Securities to be held at such time and at such place in any of such designated
locations as the Fiscal Agent shall determine. Notice of every meeting of
holders shall be made as specified in the Fiscal Agency Agreement.
In case at any time the Company or the holders of at least 25% in
aggregate principal amount of the Securities outstanding shall have requested
the Fiscal Agent to call a meeting of the holders, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Fiscal Agent shall not have given the first notice of such meeting within
21 days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the holders of
Securities in the amount above specified may determine the time and the place
in such designated locations for such meeting and may call such meeting to take
any action authorized herein by giving notice thereof as provided in the Fiscal
Agency Agreement.
(c) To be entitled to vote at any meeting of holders of Securities, a
person shall be (i) a holder of one or more Securities, or (ii) a person
appointed by an instrument in writing as proxy for a holder or holders of
Securities by such holder or holders, which proxy need not be a holder of
Securities. The only persons who shall be entitled to be present or to speak
at any meeting of holders shall be the persons entitled to vote at such meeting
and their counsel and any representatives of the Fiscal Agent and its counsel
and any representatives of the Company and its counsel. The persons entitled
to vote a majority in principal amount of the Securities shall constitute a
quorum for the transaction of all business specified in subsection (a) hereof.
No business shall be transacted in the absence of a quorum unless a quorum is
represented when the meeting is called to order. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting
shall, if convened at the request of the holders of Securities, be dissolved.
In any other case the meeting shall be adjourned for a period of not less than
10 days as determined by the chairman of the meeting prior to the adjournment
of such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in the Fiscal Agency Agreement. Subject to the
foregoing, at the reconvening of any meeting adjourned for a lack of a quorum
the persons entitled to vote 25% in principal amount of the Securities
outstanding shall constitute a quorum for the taking of any action set forth in
the notice of the original meeting. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage of the aggregate principal amount
of the Securities that shall constitute a quorum. At a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid, any
resolution and all matters (except as limited by Section 9 of these Terms and
Conditions) shall be effectively passed and decided if passed or decided by the
60
persons entitled to vote a majority in principal amount of the Securities
represented and voting at such meeting, provided that such amount shall be not
less than 25% in principal amount of the Securities outstanding. Any holder of
a Security who has executed an instrument in writing appointing a person as his
proxy shall be deemed to be present for the purposes of determining a quorum
and be deemed to have voted; provided, however, that such holder shall be
considered as present or voting only with respect to the matters covered by
such instrument in writing. Any resolution effectively passed or decision
taken at any meeting of the holders of Securities duly held in accordance with
this Section 10 shall be binding on all the holders of Securities whether or
not present or represented at the meeting.
(d) The Fiscal Agent may make such reasonable regulations as it may deem
advisable for any meeting of holders of Securities in regard to proof of the
holding of Securities and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination
of proxies, certificates and other evidence of the right to vote, and such
other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Bearer Securities shall be proved by the production
of the Bearer Securities or by a certificate executed, as depositary, by, and
the appointment of any proxy shall be proved by having the signature of the
person executing the proxy witnessed or guaranteed by, in each case, any trust
company, bank or banker satisfactory to the Fiscal Agent. Such regulations may
provide that written instruments appointing proxies, regular on their face, may
be presumed valid and genuine without the proof specified herein or other
proof. The holding of Registered Securities shall be proved by the registry
books maintained in accordance with the Fiscal Agency Agreement or by a
certificate or certificates of the Fiscal Agent in its capacity as the
Company's agent for the maintenance of such books.
(e) The Fiscal Agent shall, by an instrument in writing, appoint a
temporary chairperson and a temporary secretary of the meeting, unless the
meeting shall have been called by the Company or by the holders of Securities
as provided herein and in the Fiscal Agency Agreement, in which case the
Company or the holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairperson and a temporary secretary. A permanent
chairperson and a permanent secretary of the meeting shall be elected by vote
of the holders of a majority in principal amount of the Securities represented
at the meeting and entitled to vote. At any meeting each holder or proxy shall
be entitled to one vote for each U.S. $1,000 principal amount of Securities
held or represented by him; provided, however, that no vote shall be cast or
counted at any meeting in respect of any Securities challenged as not
outstanding and ruled by the chairperson of the meeting to be not outstanding.
The
61
chairperson of the meeting shall have no right to vote, except as a holder or
proxy. Any meeting of holders of Securities duly called at which a quorum is
present may be adjourned from time to time by vote of the holders (or proxies
for the holders) of a majority in principal amount of the Securities
represented at the meeting and entitled to vote; and the meeting may be held as
so adjourned without further notice.
(f) The vote upon any resolution submitted to any meeting of holders of
Securities shall be written ballots on which shall be subscribed the signatures
of the holders of Securities or of their representatives by proxy and the
serial number or numbers of the Securities held or represented by them. The
permanent chairperson of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of holders of Securities shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was published as provided in the Fiscal Agency Agreement. Each copy
shall be signed and verified by the affidavits of the chairperson and secretary
of the meeting, and one of such copy shall be delivered to the Company and
another to the Fiscal Agent to be preserved by the Fiscal Agent, the copy
delivered to the Fiscal Agent to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
11. Non-Business Days.
In any case where the date of maturity of the principal of or interest on
(or Additional Amounts, if any) the Securities or the date fixed for redemption
of any Security shall be at any place of payment a Saturday, Sunday, a legal
holiday or a day on which banking institutions in such place of payment are
authorized or obligated by law to close, then payment of principal or interest
(or Additional Amounts, if any) need not be made on such date at such place but
may be made on the next succeeding day at such place of payment which is not a
Saturday, Sunday, a legal holiday or a day on which banking institutions are
authorized or obligated by law to close, with the same force and effect as if
made on the date of maturity or the date fixed for redemption, and no interest
shall accrue for the period after such date.
12. Fiscal and Paying Agent.
(a) In acting under the Fiscal Agency Agreement and in connection with
the Securities, the Fiscal Agent is acting solely
62
as agent of the Company and does not assume any obligation towards or
relationship of agency or trust for or with the owner or holder of this
Security or any interest coupon appertaining hereto, except that any funds held
by the Fiscal Agent for payment on this Security shall be held in trust by it
and applied as set forth herein, but need not be segregated from other funds
held by it, except as required by law. For a description of the duties and the
immunities and rights of the Fiscal Agent under the Fiscal Agency Agreement,
reference is made to the Fiscal Agency Agreement, and the obligations of the
Fiscal Agent to the holder hereof are subject to such immunities and rights.
(b) Any monies paid by the Company to any paying agency for payment of
principal of or interest on any Security (including Additional Amounts, if any,
in respect thereof) and remaining unclaimed for two years after such payment
has been made shall be repaid to the Company and to the extent permitted by law
the holder of any Security shall thereafter look only to the Company for any
payment thereof as a general unsecured obligation thereof and all liability of
the Fiscal Agent with respect thereto shall cease.
(c) No reference herein to the Fiscal Agency Agreement and no provision
of this Security or of the Fiscal Agency Agreement shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the
principal of and interest (including Additional Amounts, as described above) on
this Security at the times, places and rate, and in the coin or currency,
herein prescribed or to convert or redeem (at the request of a holder) this
Security as provided herein or in the Fiscal Agency Agreement.
Title to Bearer Securities and coupons shall pass by delivery. As
provided in the Fiscal Agency Agreement and subject to certain limitations
therein set forth, the transfer of Registered Securities is registrable on the
Security Register upon surrender of a Registered Security for registration of
transfer at the office or agency of the Company in Providence, Rhode Island or
The City of New York, or, subject to applicable laws and regulations, at the
offices of the paying agency in Luxembourg, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the holder thereof or his attorney duly
authorized in writing, and thereupon one or more new Registered Securities, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
13. Notices.
All notices to the holders of Securities will be published in an
Authorized Newspaper (as defined in the Fiscal Agency Agreement) in Providence,
Rhode Island, The City of New York and in London, and, as long as the
Securities are listed on the
63
Luxembourg Stock Exchange, in Luxembourg. It is expected that publication in
Providence, Rhode Island and The City of New York will be made in The Wall
Street Journal (Eastern edition), in London in the Financial Times and in
Luxembourg in the Luxemburger Wort. Notices shall be deemed to have been given
on the date of publication as aforesaid or, if published on different dates, on
the date of the first such publication. Notices will be mailed to registered
holders of Registered Securities at their registered addresses as the same
shall appear on the books of the Fiscal Agent on the day fifteen days prior to
such mailing.
14. GOVERNING LAW.
(a) THE FISCAL AGENCY AGREEMENT, THE SECURITIES AND ANY COUPONS
APPERTAINING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE COMMONWEALTH OF MASSACHUSETTS.
(b) THE COMPANY HAS APPOINTED FLEET NATIONAL BANK, 111 WESTMINSTER
STREET, PROVIDENCE, RHODE ISLAND 02903 (ATTENTION: CORPORATE TRUST
ADMINISTRATOR) AS ITS AGENT UPON WHOM PROCESS MAY BE SERVED IN ANY SUIT, ACTION
OR PROCEEDING RELATING TO OR ARISING OUT OF THIS SECURITY, THE FISCAL AGENCY
AGREEMENT OR ANY COUPON APPERTAINING HERETO, WITH A COPY TO THE COMPANY AT 128
TECHNOLOGY CENTER, WALTHAM, MASSACHUSETTS 02154 (ATTENTION: PRESIDENT).
15. Authentication.
This Security and any coupon appertaining thereto shall not become valid
or obligatory for any purpose until the certificate of authentication hereon
shall have been duly signed by the Fiscal Agent acting under the Fiscal Agency
Agreement.
16. Warranty of the Issuer.
Subject to Section 15 hereof, the Company hereby certifies and warrants
that all acts, conditions and things required to be done and performed and to
have happened precedent to the creation and issuance of this Security and any
coupons appertaining thereto, and to constitute the same legal, valid and
binding obligations of the Company enforceable in accordance with their terms,
have been done and performed and have happened in due and strict compliance
with all applicable laws.
17. Accounting Terms.
All accounting terms not otherwise defined herein shall have the meanings
assigned to them in accordance with generally accepted accounting principles as
applied in the United States.
64
18. Descriptive Headings.
The descriptive headings appearing herein are for convenience of reference
only and shall not alter, limit or define the provisions hereof.
65
TRANSFER NOTICE
Only if a Registered Security or Shares issued upon conversion of any
Security is transferred (if no registration statement covering such Shares is
effective):
FOR VALUE RECEIVED, the undersigned Holder hereby sell(s), assign(s) and
transfer(s) unto _____________________________ _______________________________
whose taxpayer identification number is ________________ and whose address
including postal/zip code is __________________________________________________
___________________________________________________________ the within Security
and all rights thereunder, hereby irrevocably constituting and appointing
__________________________ attorney-in-fact to transfer said Security on the
books of the Company with full power of substitution in the premises.
In connection with the transfer of this Security, the undersigned Holder
certifies that:
[Check one)
[ ] (a) This Security is being transferred to a
"qualified institutional buyer" (as defined in
Rule 144A under the Securities Act of 1933) in
compliance with the exemption from registration
under the Securities Act of 1933 provided by Rule
144A.
[ ] (b) This Security is being transferred in an Offshore
Transaction (as defined in Regulation S under the
Securities Act of 1933) in compliance with the
exemption from registration under the Securities Act
of 1933 provided by Regulation S.
[ ] (c) This Security is being transferred to a sophisticated
institutional investor which is an "accredited investor"
(within the meaning of Rule 501(a)(l), (2), (3) or (7)
under the Securities Act of 1933) in a transaction not
involving any general solicitation or advertising.
Dated: Name:
------------- ----------------------------------
By:
------------------------------------
66
Title:
---------------------------------
NOTICE: The signature of the Holder to this
assignment must correspond with the name as
written upon the face of the within
instrument in every particular, without
enlargement or any change whatsoever.
SIGNATURE GUARANTEED
--------------------------------------
TO BE COMPLETED BY A BROKER OR DEALER IF (c) ABOVE IS CHECKED:
The undersigned represents and warrants that (i) it is a broker or dealer
registered under Section 15 of the Securities Exchange Act of 1934, (ii) each
person which will become a beneficial owner of this Security upon transfer is a
sophisticated institutional investor which is an "accredited investor" (within
the meaning of Rule 501(a)(l), (2), (3) or (7) under the Securities Act of
1933); (iii) no general solicitation or advertising was made or used by it in
connection with the offer and sale of this Security to such person(s); and (iv)
each such person has been notified that this Security has not been registered
under the Securities Act of 1933 and is subject to the restrictions on transfer
of the Security set forth herein and in the Fiscal Agency Agreement.
Dated:
------------- ---------------------------------------
By:
------------------------------------
IF NONE OF THE FOREGOING BOXES IS CHECKED, THE FISCAL AGENT SHALL NOT BE
OBLIGATED TO REGISTER THE TRANSFER OF THIS SECURITY UNLESS AND UNTIL THE
CONDITIONS TO ANY SUCH TRANSFER OF REGISTRATION SET FORTH HEREIN, ON THE FACE
HEREOF AND IN THE FISCAL AGENCY AGREEMENT SHALL HAVE BEEN SATISFIED.
67
CONVERSION NOTICE
If or Bearer Security of denomination U.S. $1,000:
The undersigned holder of this Security hereby irrevocably exercises the
option to convert this Security into Shares of Meditrust in accordance with the
terms of this Security and directs that such shares be registered in the name
of and delivered, together with a check in payment for any fractional share, to
the undersigned unless a different name has been indicated below. If shares
are to be registered in the name of a person other than the undersigned, the
undersigned will pay all transfer taxes payable with respect thereto.
Dated:
-------------
----------------------------
Signature
[MUST BE GUARANTEED]
If shares are to be registered
in the name of and delivered to
a person other than the holder,
please print such person's name
and address:
- -----------------------------
- -----------------------------
- -----------------------------
HOLDER
Please print name and address of
holder:
------------------------------
------------------------------
------------------------------
68
CONVERSION NOTICE
If Registered Security or Bearer Security of denomination U.S. $10,000:
The undersigned holder of this Security hereby irrevocably exercises the
option to convert this Security, or portion hereof (which is U.S. $1,000 or an
integral multiple thereof) below designated, into Shares of Meditrust in
accordance with the terms of this Security, and directs that such Shares,
together with a check in payment for any fractional share and any Securities
representing any unconverted principal amount hereof, be delivered to and be
registered (if a Registered Security) in the name of the undersigned unless a
different name has been indicated below. If shares or Securities are to be
registered in the name of a person other than the undersigned, the undersigned
will pay all transfer taxes payable with respect thereto.
Dated: ----------------------------
-------------- Signature
[MUST BE GUARANTEED]
If shares or Securities are to If only a portion of the registered
Person other than the holder, in the name of a Securities is to be
please print such person's name converted please indicate:
and address: l. Principal Amount to be con-
verted: U.S.$
- ----------------------------- ---------
2. Kind, amount and denomina-
- ----------------------------- tion of Securities repre-
senting unconverted prin-
- ----------------------------- cipal amount to be issued:
Bearer-U.S.$______________
Denominations: U.S.$______
(U.S. $1,000 or $10,000)
Registered-U.S.$__________
Denominations: U.S.$______
(U.S. $1,000 or an integral
multiple thereof)
REGISTERED SECURITIES ARE NOT
EXCHANGEABLE FOR BEARER SECURITIES.
69
EXHIBIT B
70
(FORM OF GLOBAL SECURITY)
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). NEITHER THIS SECURITY NOR ANY
PORTION HEREOF MAY BE OFFERED OR SOLD DIRECTLY OR INDIRECTLY IN THE UNITED
STATES OF AMERICA, ITS TERRITORIES OR POSSESSIONS ("UNITED STATES") OR TO
CITIZENS, NATIONALS OR RESIDENTS THEREOF OR TO ANY CORPORATION, PARTNERSHIP OR
OTHER ENTITY CREATED OR ORGANIZED IN OR UNDER THE LAWS OF THE UNITED STATES OR
ANY POLITICAL SUBDIVISION THEREOF OR TO ANY ESTATE" OR TRUST WHICH IS SUBJECT
TO UNITED STATES FEDERAL INCOME TAXATION REGARDLESS OF THE SOURCE OF ITS INCOME
OR TO ANY OTHER PERSON DEEMED A U.S. PERSON UNDER REGULATION S UNDER THE
SECURITIES ACT, EXCEPT BRANCHES OR AGENCIES OF UNITED STATES BANKS OR INSURANCE
COMPANIES THAT OPERATE OUTSIDE THE UNITED STATES FOR VALID BUSINESS REASONS AS
LOCALLY REGULATED BRANCHES OR AGENCIES ENGAGED IN THE BANKING OR INSURANCE
BUSINESS AND NOT SOLELY FOR THE PURPOSE OF INVESTING IN SECURITIES NOT
REGISTERED UNDER THE SECURITIES ACT ("UNITED STATES PERSONS") OTHER THAN ANY
PORTION OF THIS SECURITY SOLD, SUBJECT TO CERTAIN RESTRICTIONS, PURSUANT TO
REGULATION S UNDER THE SECURITIES ACT.
ANY UNITED STATES PERSON WHO HOLDS THIS SECURITY WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES INTERNAL REVENUE
CODE.
MEDITRUST
(Originated in the Commonwealth of Massachusetts)
6-7/8% CONVERTIBLE DEBENTURES DUE 1998
TEMPORARY GLOBAL DEBENTURE
Meditrust, a corporation duly organized and existing under the laws of the
Commonwealth of Massachusetts (the "Company") for value received, hereby
promises to pay to bearer upon presentation and surrender of this Global
Security the Principal sum of EIGHTY-SIX MILLION AND TWO HUNDRED AND FIFTY
THOUSAND United States Dollars (U.S.$86,250,000) on November 15, 1998, and to
pay interest thereon, from the date hereof, semiannually in arrears on May 15
and November 15 in each year, commencing May 15, 1994, at the rate of 6-7/8%
per annum, until the principal hereof is paid or made available for payment,
provided, however, that interest on this Global Security shall be payable only
after the issuance of the Definitive Securities for which this Global Security
is exchangeable and, in the case of Definitive Securities in bearer form, only
upon presentation and
71
surrender of the interest coupons thereto attached as they severally mature.
This Global Security is one of a duly authorized issue of Securities of
the Company designated as specified in the title hereof (the "Securities").
This Global Security and the Definitive Securities for which it is
exchangeable, as described below, are limited to the aggregate principal amount
of U.S.$86,250,000 and are entitled to the benefits of a Fiscal Agency
Agreement of even date herewith (the "Fiscal Agency Agreement") among the
Company and Fleet National Bank, as Fiscal Agent, Paying Agent, Security
Registrar, and Conversion Agent (the "Fiscal Agent"). It is a temporary
security and is exchangeable in whole or from time to time in part without
charge upon request of the holder hereof for Definitive Securities in bearer
form, with interest coupons attached, (a) not earlier than 40 days after the
date hereof and (b) as promptly as practicable following presentation of
certification, in the form set forth as Exhibits C and D of the Fiscal Agency
Agreement for such purpose, that the beneficial owner or owners of this Global
Security (or, if such exchange is only for a part of this Global Security, of
such part) are not United States Persons. Upon any exchange of a part of this
Global Security for Definitive Securities, the portion of the principal amount
hereof so exchanged shall be endorsed by the Fiscal Agent on the Schedule of
Exchanges hereto, and the principal amount hereof shall be reduced for all
purposes by the amount so exchanged.
Until exchanged in full for Definitive Securities, this Global Security
shall in all respects be entitled to the same benefits under, and subject to
the same terms and conditions of, the Fiscal Agency Agreement as Definitive
Securities authenticated and delivered thereunder, except that neither the
holder hereof nor the beneficial owners of this Global Security shall be
entitled to receive payment of interest hereon, except as provided above, or to
convert this Global Security into Shares of the Company or any other security,
cash or other property.
This Global Security shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts.
All terms used in this Global Security which are defined in the Fiscal
Agency Agreement shall have the meanings assigned to them in the Fiscal Agency
Agreement.
Unless the certificate of authentication hereon has been executed by an
authorized signatory of the Fiscal Agent, this Global Security shall not be
valid or obligatory for any purpose.
72
IN WITNESS WHEREOF, the Company has caused this Global Security to be duly
executed in its corporate name by its duly authorized signatory.
Dated as of November 15, 1993
MEDITRUST
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
CERTIFICATE OF AUTHENTICATION
This is the Global Security described in the within-mentioned Fiscal Agency
Agreement.
Fleet National Bank, as Fiscal Agent
By:
-----------------------------------
Authorized Signatory
73
EXHIBIT C
74
Form of Certificate to be Given by
The Euroclear Operator and CEDEL S.A.
CERTIFICATION
U.S. $______________
6-7/8% Convertible Debentures
due 1998
(the "Securities")
This is to certify that, based solely on certifications we have
received in writing, by tested telex or by electronic transmission from member
organizations appearing in our records as persons being entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially to the effect set forth in the Fiscal Agency Agreement, as of the
date hereof, U.S.$__________ is owned by persons that are not citizens or
residents of the United States, domestic partnerships, domestic corporations or
any estate or trust the income of which is subject to United States Federal
income taxation regardless of its source or any other person deemed a "U.S.
person" under Regulation S under the U.S. Securities Act of 1933, as amended
("United States persons").
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its territories and
possessions, including Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify (i) that we are not making available herewith for
exchange any portion of the Global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from any
of our Member Organizations to the effect that the statements made by such
Member Organization with respect to any portion of the part submitted herewith
for exchange are no longer true and cannot be relied upon as the date hereof.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or
75
threatened in connection with which this certification is or would be relevant,
we irrevocably authorize you to produce this certification to any interested
party in such proceedings.
Dated: ______________, 1993
*
Yours faithfully,
[--------------------------------
(---------------------- Office)
as Operator of the Euroclear
System]
[CEDEL S.A.]**
By:
---------------------------
- ----------------------------------
* To be dated no earlier than the date which is 40 days after
_____________, 1993.
** Delete as appropriate.
76
EXHIBIT D
77
Form of Certificate of Beneficial Ownership for
Bearer Securities to be Provided to the
Euroclear Operator or to CEDEL S.A.
CERTIFICATION
U.S. $________________
6-7/8% Convertible Debentures
due November 15, 1998
(the "Securities")
This is to certify that as of the date hereof, and except as set forth
below, the above-captioned Securities held by you for our account are owned by
persons that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of which
is subject to the United States Federal income taxation regardless of its
source or any other person deemed a "U.S. person" under Regulation S under the
United States Securities Act of 1933, as amended ("United States persons").
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its territories and
possessions, including Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
Securities held by you for our account in accordance with your operating
procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certification excepts and does not relate to $____________ of such
interest in the above Securities in respect of which we are not able to certify
and as to which we understand exchange and delivery of Definitive Securities
cannot be made until we do so certify.
We understand that this certification is required in connection with
certain tax laws and, if applicable, certain securities laws of the United
States. In connection therewith, if administrative or legal proceedings are
commenced or threatened in connection with which this certification is or
78
would be relevant, we irrevocably authorize you to produce this certification
to any interested party in such proceedings.
Dated: ______________, 199_*
[Name]
By:
--------------------------
Signature
As, or as agent for, the
beneficial owner(s) of the
Securities to which this
certificate relates.
- ----------------------
* Not earlier than 15 days prior to the date which is 40 days after
November 15, 1993.
79
EXHIBIT E
80
Form of Certificate of Beneficial Ownership
for Registered Securities to be Provided to the
Euroclear Operator or to CEDEL S.A.
Please issue $_________ of the U.S.$____________ 6-7/8% Convertible
Debentures due 1998 (the "Securities"), of Meditrust held by you for our
account in registered form. We hereby certify to you that we are not a U.S.
person as defined in Regulation S under the United States Securities Act of
1933, as amended. The exact name of the beneficial holder that the Securities
are to be registered in is as follows:
We hereby certify that we have provided such certifications on Form W-8 or
its equivalent as may be necessary to avoid imposition of withholding and/or
back-up withholding under U.S. federal tax law with respect to any payments of
interest on the Securities.
We irrevocably authorize you to produce this certificate or a copy hereof
to any interested party in any administrative or proceedings with respect to
the matters covered by this certificate.
Dated: ______________, 1993*
[NAME]
By:
---------------------------
Signature
[to be completed by the account holder
as, or as agent for, the beneficial
owner(s) of the Securities to which
this certificate relates.]
- ---------------------
* To be dated not earlier than the date which is 40 days after November 15,
1993.