FIFTH SUPPLEMENTAL INDENTURE
Dated as of August 15, 1997
to
INDENTURE
Dated as of July 26, 1995
between
MEDITRUST
and
FLEET NATIONAL BANK, as Trustee
(STATE STREET BANK AND TRUST COMPANY, Successor Trustee)
7% Notes due August 15, 2007
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE, dated as of August 15, 1997 between
Meditrust, a Massachusetts business trust (the "Company"), and State Street Bank
and Trust Company, a Massachusetts trust company (the "Trustee"), to the
Indenture dated as of July 26, 1995, between the Company and Fleet National
Bank, predecessor Trustee (the "Indenture").
WHEREAS, the parties hereto have entered into the Indenture which provides
for the issuance by the Company of one or more series of securities thereunder;
and
WHEREAS, Section 9.01 of the Indenture provides, among other things, that
the Company, when authorized by a Board Resolution, and the Trustee, at any time
and from time to time, without the consent of any Holders, may enter into an
indenture supplemental to the Indenture (a) to add to the covenants of the
Company for the benefit of the Holders of all or any series of Securities (and
if such covenants are to be for the benefit of less than all series of
Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred
upon the Company or (b) to establish the form or terms of Securities of any
series as permitted by Sections 2.01 and 2.02; and
WHEREAS, the Company wishes to issue an additional series of securities
under the Indenture, designated its 7% Notes due August 15, 2007 (the "Notes");
and
WHEREAS, the Company desires and has requested the Trustee to join with it
in the execution and delivery of this Fifth Supplemental Indenture for the
purpose of amending the Indenture in certain respects with respect to the Notes;
and
WHEREAS, the amendments contained in this Fifth Supplemental Indenture
shall apply only to the Notes, and the covenants of the Company contained in
this Fifth Supplemental Indenture are solely for the benefit of the Holders of
the Notes; and
WHEREAS, all acts necessary to constitute this Fifth Supplemental Indenture
as a valid, binding and legal obligation of the Company have been done and
performed;
NOW, THEREFORE, witnesseth that, in consideration of the premises and of
the covenants herein, it is hereby agreed as follows:
ARTICLE ONE
The Terms and Form of the Notes
-------------------------------
(a) Terms of the Notes.
(i) The Notes shall be limited to the aggregate principal amount of
$160,000,000, which shall be designated "7% Notes due August 15, 2007."
(ii) The Notes shall be issued only in denominations of $1,000 principal
amount and integral multiples thereof; shall be dated the date of their
authentication; shall mature on August 15, 2007; shall bear interest at the rate
of 7% per annum from August 15, 1997, computed on the basis of a 360-day year of
twelve 30-day months, payable commencing on February 15, 1998 and on each
succeeding February 15 and August 15 thereafter until maturity to the persons in
whose name the Notes shall be registered as of each February 1 and August 1 next
preceding such interest payment date; shall be entitled to the benefit of the
covenants of the Company set forth in Article Two (a) and (b) hereof in addition
to those set forth in the Indenture.
(b) Form of the Notes.
(i) The text of the Notes due shall be substantially in the following form:
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MEDITRUST
7% Note Due August 15, 2007
7% 7%
DUE August 15, 2007 DUE August 15, 2007
MEDITRUST, a Massachusetts business trust, promises to pay to
SPECIMEN
or registered assigns, the principal sum of _____________________ Dollars, on
August 15, 2007
Interest Payment Dates: February 15 and August 15
Record Dates: February 1 and August 1
[Additional provisions of this Security are set forth on the reverse side
of this Security.]
_____________, ____ MEDITRUST
(SEAL)
By: ____________________________
Secretary
By: ____________________________
President
CERTIFICATE OF AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY, as Trustee, certifies that this is one of
the Securities referred to in the within-mentioned Indenture.
By: ____________________________
Authorized Officer
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MEDITRUST
7% Notes Due August 15, 2007
1. Interest. Meditrust, a Massachusetts business trust (the "Company"),
promises to pay interest on the principal amount of this Note at the rate per
annum shown above. The Company will pay interest semiannually on February 15 and
August 15 of each year beginning February 15, 1998. Interest on the Notes will
accrue from August 15, 1997. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
2. Method of Payment. The Paying Agent will pay interest (except defaulted
interest) on the Notes from monies provided by the Company to the persons who
are the registered Holders of the Notes at the close of business on the February
1 or August 1 next preceding the interest payment date. Holders must surrender
Notes to a Paying Agent to collect principal payments. The Paying Agent will pay
principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts. The Paying Agent will
make all payments of principal and interest in immediately available funds, so
long as The Depository Trust Company or a successor depository continues to make
its Same-Day Funds Settlement System available to the Company.
3. Registrar and Agents. Initially, State Street Bank and Trust Company
will act as Registrar, Paying Agent and agent for service of notices and
demands. The Company may change any Registrar, co-registrar, Paying Agent and
agent for service of notices and demands without notice. The Company or any of
its Subsidiaries may act as Paying Agent. The address of State Street Bank and
Trust Company is Two International Place, Boston, MA 02110, Attn: Corporate
Trust Dept.
4. Indenture, Limitations. The Company issued the Notes as a series of its
securities under an Indenture dated as of July 26, 1995 as supplemented by a
Fifth Supplemental Indenture dated as of August 15, 1997 (the Indenture")
between the Company and State Street Bank and Trust Company, as successor
trustee (the "Trustee"). Capitalized terms herein are used as defined in the
Indenture unless otherwise defined herein. The terms of the Notes include those
stated in the Indenture and those made part of the Indenture by reference to the
Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb) as in effect on
the date of the Indenture (the "TIA"). The Notes are subject to all such terms,
and the Holders of the Notes are referred to the Indenture and the TIA for a
statement of such terms.
The Notes are general unsecured obligations of the Company limited to
$160,000,000 principal amount. The Indenture imposes certain limitations on the
ability of the Company to, among other things, incur certain liens and certain
additional indebtedness, make payments in respect of its shares of beneficial
interest, merge or consolidate with any other Person and sell, lease, transfer
or dispose of its properties or assets.
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5. Denominations, Transfer, Exchange. This Note is one of a duly authorized
issue of Securities of the Company designated as its 7% Notes due August 15,
2007. The Notes are in registered form without coupons in denominations of
$1,000 principal amount and integral multiples thereof. A Holder may register
the transfer of or exchange Notes in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture.
6. Persons Deemed Owners. The registered Holder of a Note may be treated as
the owner of it for all purposes.
7. Unclaimed Money. If money for the payment of principal or interest on
any Note remains unclaimed for three years, the Trustee and the Paying Agent
will pay the money back to the Company at its written request, unless otherwise
required by law. Thereafter, Holders may look only to the Company for payment.
8. Discharge Prior to Maturity. The Indenture will be discharged and
cancelled except for certain sections thereof upon payment of all the Notes, or
upon the irrevocable deposit with the Trustee of funds or U.S. Government
Obligations maturing on or before such payment date sufficient, together with
scheduled payments of interest thereon without reinvestment, to pay principal,
premium, if any, and interest on such payment date.
9. Supplemental Indenture. Subject to certain exceptions, the Indenture may
be amended or supplemented with respect to the Notes with the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding
and any existing default or compliance with any provision may be waived with the
consent of the Holders of the majority in principal amount of the Notes then
outstanding. Without the consent of or notice to any Holder, the Company may
supplement the Indenture, to, among other things, provide for uncertificated
Notes, cure any ambiguity, defect or inconsistency, or make any other change
that does not adversely affect the interests or rights of any Holder.
10. Successors. Upon satisfaction of the conditions provided in the
Indenture, if a successor to the Company assumes all the obligations of its
predecessor under the Notes and the Indenture, the predecessor will be released
from those obligations.
11. Defaults and Remedies. If an Event of Default with respect to the
Notes, as defined in the Indenture, occurs and is continuing, the Trustee or the
Holders of a majority in principal amount of Notes may declare all the Notes to
be due and payable immediately in the manner and with the effect provided in the
Indenture. Holders of Notes may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may require indemnity satisfactory to it,
subject to the provisions of the TIA, before it enforces the Indenture or the
Notes. Subject to certain limitations, Holders of a majority in principal amount
of the Notes then outstanding may direct the Trustee in its exercise of any
trust or
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power with respect to the Notes. The Trustee may withhold from Holders of
Securities notice of any continuing default (except a default in payment of
principal or interest) if it determines that withholding notice is in their
interests. The Company is required to file periodic reports with the Trustee as
to the absence of any Default or Event of Default.
12. Trustee Dealings with the Company. State Street Bank and Trust Company,
the Trustee under the Indenture, in its individual or any other capacity, may
make loans to, accept deposits from, and perform services for the Company or its
Affiliates, and may otherwise deal with the Company or its Affiliates as if it
were not the Trustee.
13. No Recourse Against Others. No shareholder, trustee or officer, as
such, past, present or future, of the Company or any successor corporation or
trust shall have any liability for any obligation of the Company under the Notes
or the Indenture or for any claim based on, in respect of or by reason of, such
obligations or their creation. Each Holder of a Note by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
THE DECLARATION OF TRUST ESTABLISHING THE COMPANY DATED AUGUST 6, 1985, AS
AMENDED, A COPY OF WHICH IS DULY FILED WITH THE OFFICE OF THE SECRETARY OF STATE
OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES THAT THE NAME "MEDITRUST" REFERS
TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS "TRUSTEES," BUT NOT
INDIVIDUALLY OR PERSONALLY; AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE COMPANY. ALL PERSONS
DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE
COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
14. Authentication. This Note shall not be valid until the Trustee signs
the certificate of authentication on the reverse side of this Note.
15. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants
by the entirety), JT TEN (=joint tenants with rights of survivorship and not as
tenants in common), CUST (=Custodian), and U/G/M/A (=Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and any supplemental indentures thereto. It also
will furnish the text of this Note in larger type. Requests may be made to:
MEDITRUST, 197 Third Avenue, Needham Heights, Massachusetts 02194, Attention:
John G. Demeritt, Controller.
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ASSIGNMENT FORM
If you, the Holder, want to assign this Note, fill in the form below and have
your signature guaranteed:
For value received, I or we assign and transfer this Note to
(INSERT ASSIGNEE'S SOCIAL SECURITY OR
TAX IDENTIFICATION NUMBER)
|----------------------------|
| |
|----------------------------|
................................................................................
................................................................................
................................................................................
................................................................................
(Print or type assignee's name, address and zip code)
and irrevocably appoint.........................................................
................................................... agent to transfer this Note
on the books of the Company. The agent may substitute another to act for it.
___________________________________________________________
Date:...........................................................................
Your signature:.................................................................
(Sign exactly as your name appears on the reverse side of this Note)
Signature Guaranteed By:........................................................
Note: Signature must be guaranteed by a participant in
a Signature Guaranty Medallion Program.
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ARTICLE TWO
Additional Provisions
---------------------
The following provisions in addition to those contained in the Indenture
will apply to the Notes:
(a) Limitation on Liens.
--------------------
The Company will not pledge or otherwise subject to any lien, any of its or
its Subsidiaries' property or assets unless the Notes are secured by such pledge
or lien equally and ratably with all other obligations secured thereby so long
as such other obligations shall be so secured; provided that such covenant will
not apply to liens securing obligations which do not in the aggregate at any one
time outstanding exceed 10% of Consolidated Net Tangible Assets of the Company
and its consolidated Subsidiaries and also will not apply to:
(1) Any lien or charge on any property, tangible or intangible, real or
personal, existing at the time of acquisition or construction of such property
(including acquisition through merger or consolidation) or given to secure the
payment of all or any part of the purchase or construction price thereof or to
secure any indebtedness incurred prior to, at the time of, or within one year
after, the acquisition or completion of construction thereof for the purpose of
financing all or any part of the purchase or construction price thereof;
(2) Any liens securing the performance of any contract or undertaking of
the Company not directly or indirectly in connection with the borrowing of
money, obtaining of advances or credit or the securing of debts, if made and
continuing in the ordinary course of business;
(3) Any lien in favor of the United States or any state thereof or the
District of Columbia, or any agency, department or other instrumentality
thereof, to secure progress, advance or other payments pursuant to any contract
or provision of any statute;
(4) Mechanics', materialmen's, carriers', or other like liens arising in
the ordinary course of business (including construction of facilities) in
respect of obligations which are not due or which are being contested in good
faith;
(5) Any lien arising by reason of deposits with, or the giving of any form
of security to, any governmental agency or any body created or approved by law
or governmental regulations, which is required by law or governmental regulation
as a condition to the transaction of any business, or the exercise of any
privilege, franchise or license;
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(6) Any liens for taxes, assessments or governmental charges or levies not
yet delinquent, or liens for taxes, assessments or governmental charges or
levies already delinquent but the validity of which is being contested in good
faith;
(7) Liens (including judgment liens) arising in connection with legal
proceedings so long as such proceedings are being contested in good faith and in
the case of judgment liens, execution thereof is stayed;
(8) Liens relating to secured indebtedness of the Company outstanding as of
June 30, 1996; and
(9) Any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any lien referred to in the
foregoing clauses (1) to (8) inclusive, of this subsection (a), provided,
however, that the amount of any and all obligations and indebtedness secured
thereby shall not exceed the amount thereof so secured immediately prior to the
time of such extension, renewal or replacement and that such extension, renewal
or replacement shall be limited to all or a part of the property which secured
the charge or lien so extended, renewed or replaced (plus improvements on such
property).
As used herein:
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) less (i) all
current liabilities and (ii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expenses and other like intangibles of the Company
and its consolidated Subsidiaries, all as set forth on the most recent balance
sheet of the Company and its consolidated Subsidiaries and prepared in
accordance with generally accepted accounting principles; and
"Subsidiary" means an affiliate controlled by the Company directly, or
indirectly through one or more intermediaries.
(b) Limitation on Incurrence of Obligations for Borrowed Money.
The Company will not create, assume, incur or otherwise become liable in
respect of, any
(1) Senior Debt unless the aggregate outstanding principal amount of Senior
Debt of the Company will not, at the time of such creation, assumption or
incurrence and after giving affect thereto and to any concurrent transactions,
exceed the greater of (i) 150% of Capital Base, or (ii) 225% of Tangible Net
Worth; and
(2) Non-Recourse Debt unless the aggregate principal amount of Senior Debt
and Non-Recourse Debt outstanding of the Company will not, at the time of such
creation,
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assumption or incurrence and after giving affect thereto and to any concurrent
transactions, exceed 225% of Capital Base.
For any period during which the Company shall have a Subsidiary or
Subsidiaries, the limitations contained in this subsection (b) shall be applied
to the consolidated financial statements of the Company and its Subsidiaries.
As used herein:
"Capital Base" means, at any date, the sum of Tangible Net Worth and
Subordinated Debt;
"Capital Lease" means at any time any lease of Property which, in
accordance with generally accepted accounting principles, would at such time be
required to be capitalized on a balance sheet of the lessee;
"Capital Lease Obligation" means at any time the amount of the liability in
respect of a Capital Lease which, in accordance with generally accepted
accounting principles, would at such time be required to be capitalized on a
balance sheet of the lessee;
"Debt" when used with respect to any Person means (i) its indebtedness,
secured or unsecured, for borrowed money; (ii) liabilities secured by any
existing Lien on Property owned by such Person; (iii) Capital Lease Obligations,
and the present value of all payments due under any arrangement for retention of
title (discounted at a rate per annum equal to the average interest borne by all
outstanding Debt Securities determined on a weighted average basis and
compounded semi-annually) if such arrangement is in substance an installment
purchase or an arrangement for the retention of title for security purposes; and
(iv) guarantees of obligations of the character specified in the foregoing
clauses (i), (ii) and (iii) to the full extent of the liability of the guarantor
(discounted to present value, as provided in the foregoing clause (iii), in the
case of guarantees of title retention arrangements);
"Liabilities" means, at any date, the items shown as liabilities on the
balance sheet of the Company, except any items of deferred income, including
capital gains;
"Lien" means any interest in Property securing an obligation owed to, or a
claim by, a Person other than the owner of the Property, whether such interest
is based on the common law, statute or contract, and including but not limited
to the security interest lien arising from a mortgage, encumbrance, pledge,
conditional sale or trust receipt or a lease, consignment or bailment for
security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and all other title exceptions and encumbrances affecting Property. For
all purposes of this Indenture, the Company shall be deemed to be the owner of
any Property which it has acquired or holds
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subject to a conditional sale agreement, Capital Lease or other arrangement
pursuant to which title to the Property has been retained by or vested in some
other Person for security purposes;
"Non-Recourse Debt" when used with respect to any Person, means any Debt
secured by, and only by, property on or with respect to which such Debt is
incurred where the rights and remedies of the holder of such Debt in the event
of default do not extend to assets other than the property constituting security
therefore;
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, limited liability company,
unincorporated organization or government or any agency or political subdivision
thereof;
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible;
"Senior Debt" means all Debt other than Non-Recourse Debt and Subordinated
Debt;
"Subordinated Debt" means unsecured Debt of the Company which is issued or
assumed pursuant to, or evidenced by, an indenture or other instrument which
contains provisions for the subordination of such Debt (to which appropriate
reference shall be made in the instruments evidencing such Debt if not contained
therein) to the Debt Securities (and, at the option of the Company, if so
provided, to other Debt of the Company, either generally or as specifically
designated);
"Subsidiary" means an affiliate controlled by the Company directly, or
indirectly through one or more intermediaries;
"Tangible Assets" means all assets of the Company (including assets held
subject to Capital Leases and other arrangements described in the last sentence
of the definition of "Lien") except: (i) deferred assets, other than prepaid
insurance, prepaid taxes and deposits; (ii) patents, copyrights, trademarks,
trade names, franchises, goodwill, experimental expense and other similar
intangibles; and (iii) unamortized debt discount and expense; and
"Tangible Net Worth" means, with respect to the Company at any date, the
net book value (after deducting related depreciation, obsolescence,
amortization, valuation and other proper reserves) of the Tangible Assets of the
Company at such date minus the amount of its Liabilities at such date.
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ARTICLE THREE
Miscellaneous
-------------
The Indenture, except as amended herein, is in all respects ratified and
confirmed and this Fifth Supplemental Indenture and all its provisions herein
contained shall be deemed a part thereof in the manner and to the extent herein
and therein provided.
The terms used in this Fifth Supplemental Indenture, but not defined
herein, shall have the meanings assigned thereto in the Indenture.
THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT
REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
This Fifth Supplemental Indenture may be simultaneously executed in any
number of counterparts, and all such counterparts executed and delivered, each
as an original, shall constitute one and the same instrument.
THE DECLARATION OF TRUST ESTABLISHING THE COMPANY DATED AUGUST 6, 1985, AS
AMENDED, A COPY OF WHICH IS DULY FILED WITH THE OFFICE OF THE SECRETARY OF STATE
OF THE COMMONWEALTH OF MASSACHUSETTS, PROVIDES THAT THE NAME "MEDITRUST" REFERS
TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS "TRUSTEES," BUT NOT
INDIVIDUALLY OR PERSONALLY; AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE
OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR
SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE COMPANY. ALL PERSONS
DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE
COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
IN WITNESS WHEREOF, the parties hereto have caused this Fifth Supplemental
Indenture to be duly executed, as of the day and year first above written.
MEDITRUST
By: _______________________________
Name:
Title: Chief Financial Officer
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STATE STREET BANK AND TRUST
COMPANY, as trustee
By: _______________________________
Name:
Title:
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
County of Norfolk )
On the day of August, 1997, before me personally came , to
me known, who, being by me duly sworn, did depose and say that she is Chief
Financial Officer of Meditrust, one of the business entities described in and
which executed the foregoing instrument; that s/he knows the seal of Meditrust;
that the seal affixed to said instrument is Meditrust's seal; that it was so
affixed by authority of the Board of Trustees of Meditrust; and that s/he signed
her name thereto by like authority.
[SEAL]
________________________________
Notary Public
My commission expires:
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
County of Suffolk___________________ )
On the ________ day of August __, 1997, before me personally came
_________________________, to me known, who, being by me duly sworn, did depose
and say that s/he is _______________________________ of State Street Bank and
Trust Company, one of the business entities described in and which executed the
foregoing instrument; that s/he knows the seal of said bank; that the seal
affixed to said instrument is such bank's seal; that it was so affixed by
authority of the Board of Directors of said bank; and that s/he signed his/her
name thereto by like authority.
[SEAL]
___________________________
Notary Public
My commission expires:
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