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EXHIBIT 4.2
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HEALTHCARE REALTY TRUST INCORPORATED
AND
FIRST UNION NATIONAL BANK
AS TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF MAY 15, 2001
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SUPPLEMENT TO INDENTURE DATED AS OF MAY 15, 2001
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of May 15, 2001, between
HEALTHCARE REALTY TRUST INCORPORATED, a Maryland corporation (hereinafter called
the "Company"), having its principal office at 3310 West End Avenue, Suite 700,
Nashville, Tennessee 37203, and FIRST UNION NATIONAL BANK, a national banking
association organized under the laws of the United States of America, as Trustee
(hereafter called the "Trustee"), having a Corporate Trust Office at 2525 West
End Avenue, Suite 1200, Nashville, Tennessee 37203, as Trustee under the
Indenture (as hereinafter defined).
RECITALS
WHEREAS, the Company and the Trustee are parties to an Indenture, dated
as of May 15, 2001, a copy of which is attached hereto as Exhibit A and which is
incorporated herein by reference (hereinafter called the "Indenture") providing
for the issuance by the Company from time to time of its senior debt securities
evidencing its unsecured and unsubordinated indebtedness (the "Securities");
WHEREAS, no Securities have been issued under the Indenture;
WHEREAS, the Company desires to issue a series of senior debt
securities under the Indenture designated as its 8.125% Senior Notes due 2011
(the "Notes"), and has duly authorized the creation of the Notes and the
execution and delivery of this First Supplemental Indenture to modify the
Indenture and provide certain additional provisions as hereinafter described;
and
WHEREAS, the Company and the Trustee deem it advisable to enter into
this First Supplemental Indenture for the purposes of providing for the rights,
obligations and duties of the Trustee with respect to the Notes and to set forth
certain specific provisions with respect thereto;
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, the Company and the Trustee
covenant and agree, for the equal and proportionate benefit of all Holders of
the Notes, as follows:
ARTICLE ONE
RELATION TO INDENTURE; DEFINITIONS
Section 1.01. This First Supplemental Indenture constitutes an integral
part of the Indenture.
Section 1.02. Pursuant to Section 301(25) of the Indenture, so long as
any of the Notes are Outstanding, the following definitions shall be applicable
to the Notes, be
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included as defined terms with respect to the Notes for all purposes and, to the
extent inconsistent with the definition of such term contained in Section 101 of
the Indenture, shall replace such definition with respect to the Notes:
"Acquired Debt" means Debt of a Person (i) existing at the time such
Person becomes a Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case, other than Debt incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.
"Annual Consolidated Interest Expense" for any 12-month period means
the Consolidated Interest Expense for such period in accordance with GAAP.
"Capital Lease" means at any time a lease with respect to which the
lessee is required concurrently to recognize the acquisition of any asset and
the incurrence of a liability in accordance with GAAP.
"Capitalized Lease Obligations" means, with respect to any Person and a
Capital Lease, the amount of the obligation of such Person as the lessee under
such Capital Lease which would, in accordance with GAAP, appear as a liability
on a balance sheet of such Person.
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations plus amounts which have been deducted, and minus
amounts which have been added, for (i) Consolidated Interest Expense, (ii)
provision for taxes of the Company and its Subsidiaries based on income, (iii)
amortization (other than amortization of debt discount) and depreciation, (iv)
provisions for gains and losses from sales or joint ventures, (v) increases in
deferred taxes and other non-cash items, (vi) charges resulting from a change in
accounting principles, and (vii) charges for early extinguishment of debt.
"Consolidated Interest Expense" means, for any period, and without
duplication, all interest (including the interest component of rentals on
capitalized leases, letter of credit fees, commitment fees and other like
financial charges) and all amortization of debt discount on all Debt (including,
without limitation, payment-in-kind, zero coupon and other like securities) of
the Company and its Subsidiaries, but excluding legal fees, title insurance
charges and other out-of-pocket fees and expenses incurred in connection with
the issuance of Debt, all determined in accordance with GAAP, and the amount of
dividends which are payable during such period in respect of any Disqualified
Stock.
"Consolidated Net Income" for any period means the amount of net income
(or loss) of the Company and its Subsidiaries for such period determined in
accordance with GAAP after eliminating intercompany accounts and transactions.
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date
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hereof is located at 2525 West End Avenue, Suite 1200, Nashville, Tennessee
37203, and, for purposes of the Place of Payment provisions of Sections 305 and
1002 of the Indenture, is located at 1525 West W.T. Harris Boulevard, Charlotte,
North Carolina 28288-1153.
"Disqualified Stock" means, with respect to any Person, any Capital
Stock of such Person which by the terms of such Capital Stock (or by the terms
of any security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise
(other than Capital Stock which is redeemable solely in exchange for common
stock), (ii) is convertible into or exchangeable or exercisable for Debt or
Disqualified Stock or (iii) is redeemable at the option of the holder thereof,
in whole or in part (other than Capital Stock which is redeemable solely in
exchange for Capital Stock which is not Disqualified Stock or the redemption
price of which may, at the option of such Person, be paid in Capital Stock which
is not Disqualified Stock), in each case on or prior to the Stated Maturity of
the Notes.
"Earnings from Operations" for any period means the net earnings
determined in accordance with GAAP, excluding gains and losses on sales of
investments, extraordinary items and property valuation losses.
"Lien" means, with respect to any Person, any mortgage, lien, pledge,
charge, security interest or other encumbrance, or any interest or title of any
vendor, lessor, lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or Capital Lease, upon or
with respect to any property or asset of such Person (including, in the case of
stock, stockholder agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" means, in connection with any optional redemption
or accelerated payment of any Notes, the excess, if any, of (i) the aggregate
present value as of the date of such redemption or accelerated payment of each
dollar of principal being redeemed or paid and the amount of interest (exclusive
of interest accrued to the date of redemption or accelerated payment) that would
have been payable in respect of each such dollar if such redemption or
accelerated payment had not been made, determined by discounting, on a
semi-annual basis, such principal and interest at the Reinvestment Rate
(determined on the third Business Day preceding the date such notice of
redemption is given or declaration of acceleration is made) from the respective
dates on which such principal and interest would have been payable if such
redemption or accelerated payment had not been made, over (ii) the aggregate
principal amount of the Notes being redeemed or paid.
"Mortgage Debt" means Debt of the Company or any Subsidiary secured by
a Lien on one or more parcels of their real property.
"Notes" means the Company's 8.125% Senior Notes due 2011.
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"Reinvestment Rate" means 0.25% plus the arithmetic mean of the yields
under the respective heading "Week Ending" published in the most recent
Statistical Release under the caption "Treasury Constant Maturities" for the
maturity (rounded to the nearest month) corresponding to the remaining life to
maturity, as of the payment date of the principal being redeemed or paid. If no
maturity exactly corresponds to such maturity, yields for the two published
maturities most closely corresponding to such maturity shall be calculated
pursuant to the immediately preceding sentence and the Reinvestment Rate shall
be interpolated or extrapolated from such yields on a straight-line basis,
rounding in each of such relevant periods to the nearest month. For the purpose
of calculating the Reinvestment Rate, the most recent Statistical Release
published prior to the date of determination of the Make-Whole Amount shall be
used.
"Secured Debt" means Debt secured by any mortgage, trust deed, deed of
trust, deed to secure debt, security agreement, pledge, conditional sale or
other title retention agreement, capitalized lease, or other like agreement
granting or conveying security title to or a security interest in real property
or other tangible assets, other than those relating to intercompany debt. For
purposes hereof, such Debt shall become Secured Debt at the time it first
becomes secured by execution of any of the documents, instruments or agreements
described in the immediately preceding sentence.
"Statistical Release" means that statistical release designated
"H.15(519)" or any successor publication that is published weekly by the Federal
Reserve System and that establishes yields on actively traded United States
government securities adjusted to constant maturities, or, if such statistical
release is not published at the time of any determination under the Indenture,
then such other reasonably comparable index that shall be designated by the
Company.
"Total Unencumbered Assets" as of any date means the sum of (i) those
Undepreciated Real Estate Assets not securing any portion of Secured Debt and
(ii) all other assets of the Company and its Subsidiaries not securing any
portion of Secured Debt determined in accordance with GAAP (but excluding
intangibles) after eliminating intercompany accounts and transactions.
"Unsecured Debt" means at any time the aggregate unpaid principal
amount of all Debt of the Company and its Subsidiaries other than (i) Debt of a
Subsidiary owing to the Company or to a Wholly-Owned Subsidiary and (ii)
Mortgage Debt.
"Wholly-Owned Subsidiary" means, at any time, any Subsidiary 100% of
all of the equity interests (except directors' qualifying shares) and voting
interests and all Debt of which are owned by any one or more of the Company and
the Company's other Wholly-Owned Subsidiaries at such time.
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ARTICLE TWO
CREATION OF THE NOTES
Section 2.01. Pursuant to the terms hereof and the Indenture, the
Company hereby creates a series of its Notes known as the "8.125% Senior Notes
due 2011" each of which shall be deemed Securities for all purposes of the
Indenture.
Section 2.02. The definitive form of the Notes shall be substantially
in the form set forth in Exhibit B attached hereto, which is incorporated herein
and made part hereof.
Section 2.03. (a) The Notes will bear interest at a rate of 8.125% per
annum, from May 1, 2001 or from the immediately preceding Interest Payment Date
to which interest has been paid or duly provided for, payable semi-annually in
arrears on May 1 and November 1 of each year, commencing November 1, 2001 (each,
an "Interest Payment Date"), to the Person in whose name such Note is registered
at the close of business on April 15 or October 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date (each, a
"Regular Record Date"). Interest on the Notes will be computed on the basis of a
360-day year comprised of twelve 30-day months.
(b) The interest so payable on any Note which is not punctually paid or
duly provided for on any Interest Payment Date ("Defaulted Interest") shall
forthwith cease to be payable to the Person in whose name such Note is
registered on the relevant Regular Record Date, and such Defaulted Interest
shall instead be payable either (i) to the Person in whose name such Note is
registered on the Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice of which shall be given to the Holder of such
Note not less than ten days prior to such Special Record Date or (ii) may be
paid at any time in any other lawful manner in accordance with the Indenture.
(c) If any Interest Payment Date or Stated Maturity falls on a day that
is not a Business Day, the required payment shall be made on the next Business
Day as if it were made on the date such payment was due and no interest shall
accrue on the amount so payable for the period from and after such Interest
Payment Date or Stated Maturity, as the case may be.
(d) The Notes will mature on May 1, 2011.
Section 2.04. The Notes shall initially not exceed $300,000,000 in
aggregate principal amount, and may, upon the execution and delivery of this
First Supplemental Indenture or from time to time thereafter, be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall
thereupon authenticate and deliver said Notes to or upon the written order of
the Company, signed by its President or a Vice President and by its Treasurer or
an Assistant Treasurer or its Secretary or an Assistant Secretary, without
further action by the Company. The series of Securities comprised of the Notes
may be reopened and additional Notes forming a part of the same series may be
issued in the future.
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Section 2.05. The Trustee's certificate of authentication to be borne
by the Notes shall be substantially of the tenor and purport as provided in the
Indenture.
Section 2.06. The Notes may be redeemed at any time in whole or from
time to time in part, at the option of the Company, at a redemption price equal
to the sum of (i) the principal amount of the Notes being redeemed plus accrued
interest thereon to the Redemption Date and (ii) the Make-Whole Amount, if any,
with respect to such Notes (the "Redemption Price"). The Company shall calculate
the Make-Whole Amount, if any, to be paid pursuant to this Section 2.06 and,
together with any notice of redemption required by Section 1102 of the
Indenture, shall provide the Trustee an Officer's Certificate setting forth the
Make-Whole Amount, upon which Certificate the Trustee shall be entitled to rely.
Section 2.07. The Places of Payment where the Notes may be presented or
surrendered for payment, where the Notes may be surrendered for registration of
transfer or exchange and where notices and demands to and upon the Company in
respect of the Notes and the Indenture may be served shall be in the City of
Charlotte, North Carolina, and the office or agency for such purpose shall
initially be located at First Union National Bank, 1525 West W.T. Harris
Boulevard, Charlotte, North Carolina 28288-1153.
Section 2.08. Payment of the principal of and interest on the Notes
will be made at the office or agency of the Company maintained for that purpose
(which shall initially be an office or agency of the Trustee), in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that, at the
option of the Company, payments of principal and interest on the Notes (other
than payments of principal and interest due at Stated Maturity) may be made (i)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto located within the United States,
provided, that such Person owns Notes in an aggregate principal amount of at
least $1,000,000 and such Person makes a written request therefor for the
appropriate Interest Payment Date.
Section 2.09. Principal and interest on the Notes shall be payable in
Dollars.
Section 2.10. The Notes shall be issuable and transferable in fully
registered form as Registered Securities, without coupons. The Notes shall each
be issued in the form of one or more permanent Global Securities. The depository
for the Notes shall be The Depository Trust Company ("DTC"). The Notes shall not
be issuable in definitive form except as provided in the Indenture.
Section 2.11. The Trustee shall initially serve as Registrar and Paying
Agent for the Notes.
Section 2.12. The provisions of Section 1402 and 1403 of the Indenture,
together with the other provisions of Article Fourteen of the Indenture, shall
be applicable to the Notes. The provisions of Section 1403 of the Indenture
shall apply to the covenants set
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forth in Article Four of this First Supplemental Indenture and to those
covenants specified in Section 1403 of the Indenture.
ARTICLE THREE
APPOINTMENT OF THE TRUSTEE FOR THE NOTES
Section 3.01. Pursuant and subject to the Indenture, the Company and
the Trustee hereby constitute the Trustee as trustee to act on behalf of the
Holders of the Notes, effective upon execution and delivery of this First
Supplemental Indenture. By execution, acknowledgement and delivery of this First
Supplemental Indenture, the Trustee hereby accepts appointment as trustee with
respect to the Notes, and agrees to perform such trusts upon the terms and
conditions in the Indenture and in this First Supplemental Indenture set forth.
Section 3.02. Any rights, powers, duties and obligations by any
provisions of the Indenture conferred or imposed upon the Trustee shall, insofar
as permitted by law, be conferred or imposed upon and exercised or performed by
the Trustee with respect to the Notes.
ARTICLE FOUR
COVENANTS OF THE COMPANY
The covenants provided for by Article Ten of the Indenture will be
applicable to the Notes. In addition, pursuant to Section 301(15) of the
Indenture, so long as any of the Notes are Outstanding, the Company covenants
and agrees as follows:
Section 4.01. Limitations on Incurrence of Total Debt. The Company will
not, and will not permit any Subsidiary to, incur any Debt if, immediately after
giving effect to the incurrence of such additional Debt and the application of
the proceeds thereof, the aggregate principal amount of all outstanding Debt of
the Company and its Subsidiaries (determined on a consolidated basis in
accordance with GAAP) is greater than 60% of the sum of (without duplication)
(i) the Total Assets of the Company and its Subsidiaries as of the end of the
calendar quarter covered in the Company's Annual Report on Form 10-K or
Quarterly Report on Form 10-Q, as the case may be, most recently filed with the
Commission (or, if such filing is not permitted under the Exchange Act, with the
Trustee) prior to the incurrence of such additional Debt and (ii) the purchase
price of any real estate assets or mortgages receivable acquired, and the amount
of any securities offering proceeds received (to the extent that such proceeds
were not used to acquire real estate assets or mortgages receivable or used to
reduce Debt), by the Company or any Subsidiary since the end of such calendar
quarter, including those proceeds obtained in connection with the incurrence of
such additional Debt.
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Section 4.02. Limitation on Incurrence of Debt Secured by any Lien. The
Company will not, and will not permit any Subsidiary to, incur any Debt secured
by any Lien upon any of the property of the Company or any Subsidiary if,
immediately after giving effect to the incurrence of such additional Debt and
the application of the proceeds thereof, the aggregate principal amount of all
outstanding Debt of the Company and its Subsidiaries (determined on a
consolidated basis in accordance with GAAP) which is secured by any Lien on
property of the Company or any Subsidiary is greater than 40% of the sum of
(without duplication) (i) the Total Assets of the Company and its Subsidiaries
as of the end of the calendar quarter covered in the Company's Annual Report on
Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently
filed with the Commission (or, if such filing is not permitted under the
Exchange Act, with the Trustee) prior to the incurrence of such additional Debt
and (ii) the purchase price of any real estate assets or mortgages receivable
acquired, and the amount of any securities offering proceeds received (to the
extent that such proceeds were not used to acquire real estate assets or
mortgages receivable or used to reduce Debt), by the Company or any Subsidiary
since the end of such calendar quarter, including those proceeds obtained in
connection with the incurrence of such additional Debt.
Section 4.03. Maintenance of Total Unencumbered Assets. The Company and
its Subsidiaries will not at any time own Total Unencumbered Assets equal to
less than 150% of the aggregate outstanding principal amount of the Unsecured
Debt of the Company and its Subsidiaries on a consolidated basis.
Section 4.04. Debt Service Coverage. The Company will not, and will not
permit any Subsidiary to, incur any Debt if the ratio of Consolidated Income
Available for Debt Service to the Consolidated Interest Expense for the four
consecutive fiscal quarters most recently ended prior to the date on which such
additional Debt is to be incurred shall have been less than 1.5:1 on a pro forma
basis after giving effect thereto and to the application of the proceeds
therefrom, and calculated on the assumption that (i) such Debt and any other
Debt incurred by the Company and its Subsidiaries since the first day of such
four-quarter period and the application of the proceeds therefrom, including to
refinance other Debt, had occurred at the beginning of such period; (ii) the
repayment or retirement of any other Debt by the Company and its Subsidiaries
since the first day of such four-quarter period had been repaid or retired at
the beginning of such period (except that, in making such computation, the
amount of Debt under any revolving credit facility shall be computed based upon
the average daily balance of such Debt during such period); (iii) in the case of
Acquired Debt or Debt incurred in connection with any acquisition since the
first day of such four-quarter period, the related acquisition had occurred as
of the first day of such period with the appropriate adjustments with respect to
such acquisition being included in such pro forma calculation; and (iv) in the
case of any acquisition or disposition by the Company or its Subsidiaries of any
asset or group of assets since the first day of such four-quarter period,
whether by merger, stock purchase or sale, or asset purchase or sale, such
acquisition or disposition or any related repayment of Debt had occurred as of
the first day of such period with the appropriate adjustments with respect to
such acquisition or disposition being included in such pro forma calculation.
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ARTICLE FIVE
MISCELLANEOUS
Section 5.01. Each and every term and condition contained in the
Indenture shall apply to this First Supplemental Indenture with the same force
and effect as if the same were herein set forth in full, with such omissions,
variations and modifications thereof as may be appropriate to make the same
conform to this First Supplemental Indenture. As supplemented by this First
Supplemental Indenture, the Indenture shall be read, taken and construed as one
and the same instrument; provided, however, that the rights, duties and
obligations of the Trustee in this First Supplemental Indenture shall be limited
to those matters expressly relating to the Notes. The permissive rights of the
Trustee to take any action under this First Supplemental Indenture or the
Indenture shall not be construed as duties.
Section 5.02. Nothing contained in this First Supplemental Indenture
shall be construed to confer upon any person other than a Holder of the Notes,
the Company and the Trustee any right or interest to avail itself or himself, as
the case may be, of any benefit under any provision of the Indenture or this
First Supplemental Indenture.
Section 5.03. All capitalized terms which are used herein and not
otherwise defined herein are defined in the Indenture and are used herein with
the same meanings as Indenture.
Section 5.04. This First Supplemental Indenture shall be effective as
of the date first above written and upon the execution and delivery hereof by
each of the parties hereto.
Section 5.05. This First Supplemental Indenture shall be governed by,
and construed in accordance with, the laws of the State of New York.
Section 5.06. This First Supplemental Indenture may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original but all such counterparts shall together constitute but one and the
same instrument.
Section 5.07. This Supplemental Indenture shall cease to be of further
effect upon compliance with Section 401 of the Indenture with respect to the
Notes created hereby.
Section 5.08. The provisions of this First Supplemental Indenture shall
only be applicable with respect to, and govern the terms of, the Notes and shall
not apply to any other Securities that may be issued by the Company under the
Indenture.
Section 5.09. In case any one or more of the provisions contained in
this First Supplemental Indenture or in the Notes shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provisions of this
First Supplemental Indenture or of the Notes, but this First Supplemental
Indenture and the Notes shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein or therein.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed by their respective officers hereunto
duly authorized, all as of the day and year first above written.
HEALTHCARE REALTY TRUST INCORPORATED
Dated: May 15, 2001 By: /s/ David R. Emery
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Name: David R. Emery
Title: Chief Executive Officer
FIRST UNION NATIONAL BANK
as Trustee
Dated: May 15, 2001 By: /s/ Greta Wright
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Name: Greta Wright
Title: Vice President
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