Exhibit 99.5
AMENDMENT AGREEMENT
AMENDMENT AGREEMENT (the "Agreement") dated as of September 11, 1998, by
and between Meditrust Corporation (the "REIT"), Meditrust Operating Company
("OPCO," and together with the REIT, the "Companies") and Xxxxxxx Xxxxx
International ("MLI"), through its agent Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("MLPF&S," and together with MLI the "Xxxxxxx Xxxxx Parties").
Reference is made herein to the Purchase Agreement and the Purchase Price
Adjustment Mechanism Agreement each dated as of February 26, 1998 by and between
the Companies and the Xxxxxxx Xxxxx Parties (the "Purchase Agreement," and the
"Adjustment Agreement," respectively), the Amendment Agreement, dated as of July
16, 1998 (the "First Amendment Agreement") and the Amendment Agreement, dated as
of July 31, 1998, each by and between the Companies and the Xxxxxxx Xxxxx
Parties. Capitalized terms not otherwise defined herein shall have the meaning
ascribed thereto in the Adjustment Agreement and the Purchase Agreement. All
references herein to Reference Amount mean Reference Amount with respect to the
Adjustment Shares.
WHEREAS, the parties desire to provide that the Companies may deliver the
entire Interim Settlement Amount in unrestricted Interim Settlement Shares or
cash, as they elect; and
WHEREAS, the parties desire to clarify MLI's rights with respect to Interim
Settlement Shares delivered to the collateral account provided for in Section 5
of the Adjustment Agreement (the "Collateral Account");
NOW, THEREFORE, in consideration of the mutual undertakings herein set
forth, the parties intending to be legally bound, hereby agree as follows:
1 Subject to Section 4 hereof, the First Amendment Agreement is hereby
rescinded, and shall be of no further force or effect.
2. Within 2 Business Days following the date of this Agreement and within
5 Business Days following each subsequent Reset Date (as defined
below), the Companies shall deliver to the Collateral Account the
Interim Settlement Amount (or 150% of the Interim Settlement Amount to
the extent that the Companies deliver Interim Settlement Shares that
are not the subject of an Effective Registration Statement) in Interim
Settlement Shares or cash, as the Companies shall elect in their sole
discretion; provided, that if on any Exchange Trading Day there are
(i) no Interim Settlement Shares in the Collateral Account and (ii) no
Additional Shares in the MLI Account (as defined below), the Companies
shall deliver the Interim Settlement Amount, as calculated on such
Exchange Trading Day, (or 150% thereof, as described above) in Interim
Settlement Shares within 1 Business Day of such Exchange Trading Day.
"Reset Date" means each Tuesday following the date hereof until the
Reference Amount has been reduced to zero; provided, that if such day
is not an Exchange Trading Day then the Reset Date shall be the next
succeeding Business Day.
3. MLI has the right to settle 100% of the Adjustment Shares and in
connection therewith to sell a number of Paired Shares equal to the
number of Paired Shares purchased by MLI pursuant to the Purchase
Agreement (the "Original Shares") and any and all Interim Settlement
Shares transferred from the Collateral Account to MLI pursuant to
Section 6(c) hereof ("Additional Shares") and the Companies shall have
no right to prevent MLI from settling Adjustment Shares by delivering
the Interim Settlement Amount in cash or otherwise. MLI shall be
entitled to continue settlement procedures and the Companies shall
continue to deliver Interim Settlement Shares pursuant to Section 5 of
the Adjustment Agreement, as amended by Section 2 hereof, and
otherwise perform the Companies' obligations under the Adjustment
Agreement, as heretofore and hereby amended, until the Reference
Amount has been reduced to zero or until MLI, in its sole discretion,
agrees to accept a cash payment from the Companies in settlement of
the remaining obligations under the Adjustment Agreement. Nothing
herein shall be construed to reduce the obligation of the Companies
under the Adjustment Agreement to deliver to MLI a number of Paired
Shares in addition to the Purchased Shares, the sale proceeds of which
when combined with the sale proceeds of the Original Shares equal the
Reference Amount.
4. Any cash collateral previously delivered by the Companies pursuant to
Sections 2 and 3 of the First Amendment Agreement shall remain in the
Collateral Account until final settlement of the Adjustment Shares or
until transfer pursuant to Section 6(a) hereof.
5. The Companies and MLI confirm that the Companies have granted to MLI
and that MLI has a first priority security interest in any and all
Interim Settlement Shares and any and all cash amounts heretofore or
hereafter delivered to MLI or its agent and held in the Collateral
Account pursuant to Section 5 of the Adjustment Agreement. MLPF&S
acknowledges that it is holding and will hold any and all Interim
Settlement Shares and any and all cash now or hereafter held in the
Collateral Account pursuant to Section 5 of the Adjustment Agreement
as bailee on behalf of MLI as pledgee.
6. (a) At any time after MLI notifies the Companies that it intends to
settle Adjustment Shares pursuant to Section 3 hereof, (i) any and
all cash amounts in the Collateral Account shall be transferred to
an account at MLPF&S in the name of and for the exclusive benefit
of MLI (the "MLI Account"), (ii) MLI shall have the right to sell
any and all Original Shares and any and all Additional Shares
pursuant to Section 8 hereof and (iii) the right of the Companies
to direct the settlement of Adjustment Shares pursuant to Section
3.1 of the Adjustment Agreement shall cease. Upon such transfer of
cash into the MLI Account, the number of Adjustment Shares shall
be reduced by a number of Adjustment Shares equal to the quotient
of (i) the amount of cash
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transferred to the MLI Account and (ii) the Reference Price on the
date of such transfer.
(b) At 4:30 p.m. New York City time on each Settlement Date, MLI shall
calculate the Reference Amount by multiplying the (a) Reference
Price as calculated pursuant to 1(z) of the Adjustment Agreement
times (b) the number of Adjustment Shares as adjusted by
paragraphs 6(a) and 7 of this Agreement.
(c) Immediately following the calculation of the Reference Amount
pursuant to paragraph (b) above, subject to the ownership
limitation provisions of Section 6.2 of the Adjustment Agreement
(which shall also be deemed to apply to MLI), (i) all right, title
and interest to Interim Settlement Shares having a value (based on
the Closing Price on such Settlement Date) equal to (x) the
Reference Amount (as most recently calculated pursuant to the
preceding paragraph) less (y) the value (based on the Closing
Price on such Settlement Date) of the Original Shares and any
Additional Shares held by MLI at 4 p.m. New York City time on such
Settlement Date shall be transferred to MLI and (ii) such Interim
Settlement Shares shall be transferred to the MLI Account.
(d) The transfer of Additional Shares pursuant to paragraph 6(c) shall
constitute the purchase of a securities entitlement from the
Companies for value by MLI and the transfer of all right, title
and interest in and to the Additional Shares to MLI, and after
such transfer MLI shall be the owner of such Additional Shares for
all purposes.
(e) MLI shall have the right to sell any such Additional Shares in
their sole discretion in any of the manners set forth in Section
3.1 of the Adjustment Agreement, as hereby amended.
(f) The number of Adjustment Shares shall be reduced after any sales
of Original Shares or Additional Shares by a number of Adjustment
Shares equal to the quotient of (i) the Settlement Amount (as
defined in Section 1(ad) of the Adjustment Agreement) in
connection with such sale and (ii) the Reference Price on the
related Settlement Date.
7. Upon the date on which the Reference Amount has been reduced to zero,
MLI shall (i) transfer, assign and deliver to the Companies any cash
and/or Paired Shares previously paid to but not applied to reduce the
Reference Amount, and (ii) release all claims to cash and Interim
Settlement Shares then held in the Collateral Account (including
interest earned thereon) and deliver such amounts and all Interim
Settlement Shares of the Companies.
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8. To effect the Settlement of Adjustment Shares, MLI may sell the
Original Shares and any and all Additional Shares from time to time in
a method or methods determined exclusively by MLI and all sales of
Paired Shares by MLI after the date hereof shall be deemed to be
pursuant to Section 4.1 of the Adjustment Agreement. The Companies and
MLI agree that such sales will be made in a commercially reasonable
manner, which may include Block Sales at discounts to current market
prices that, in MLI's judgment, are commercially reasonable and
appropriate at the time of such sales. Notwithstanding the foregoing,
if MLI proposes to make a sale of 750,000 or more Paired Shares to a
single purchaser in a single transaction of series of transactions,
pursuant Section 6 hereof, other than through the facilities of the
New York Stock Exchange at prevailing market prices, it shall first
notify the Companies of the material terms of such sale (including the
number of Paired Shares and the proposed price per Paired Share) and
the Companies shall then have the right to purchase (or to designate
one or more purchasers for) such Paired Shares on such terms;
provided, however, that if the Companies (or their designee(s)) shall
fail to commit to such purchase (i) if MLI gives the Companies notice
prior to 12:00 p.m., New York City time, prior to 4:30 p.m. New York
City time on the date on which MLI gives the Companies notice of the
proposed sale as provided above, (ii) if MLI gives the Companies
notice on or after 12:00 p.m. and before 6:00 p.m., prior to 9:00 a.m.
New York City time on the day following the day on which MLI gives the
Companies notice of the proposed sale as provided above or (iii) if
such sale involves 2,000,000 or more Paired Shares to be sold in a
single transaction, notwithstanding the provisions of clauses (i) and
(ii) above, within 24 hours of the time at which MLI gives the
Companies notice of the proposed sale as provided above, MLI may
proceed to effect such sale on the proposed terms with such purchaser
or purchasers as it select.
9. The following is added to the end of the first sentence of Section 3.1
of the Adjustment Agreement.
;or
(v) a Subscription Distribution (for which the Companies shall provide
at least 5 Business Days prior notice to MLI).
10. The following definition is added to Section 1 of the Adjustment
Agreement:
(a) Subscription Distribution. An offering of the Paired Shares to
existing holders of the Paired Shares.
11. The definition of "Settlement Amount" in Section l(ad) of the
Adjustment Agreement is amended by adding the following at the end of
subsection (iv):
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(v) if the manner of Settlement Sale pursuant to Section 3.1 is a
Subscription Distribution, the Settlement Amount will equal the
gross proceeds realized, net of any fees, discounts or other
costs incurred by the Companies in connection with such
Subscription Distribution.
12. The Companies and MLI agree that sales by MLI pursuant to the
Adjustment Agreement, as amended hereby, will be deemed to be resales
by the Xxxxxxx Xxxxx Parties pursuant to a Resale Registration
Statement (as defined in the Purchase Agreement).
13. In the event of any conflict between the provisions of this Agreement,
on the one hand, and the Purchase Agreement or the Adjustment
Agreement, as previously amended, on the other hand, the provisions of
this Agreement shall prevail, provided, however, that the Xxxxxxx
Xxxxx Parties acknowledge and agree that nothing contained in this
Agreement is intended to cause MLI to receive a total return under the
Adjustment Agreement that is greater than that to which MLI was
entitled under the Adjustment Agreement prior to its amendment.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Agreement as of the date first above written.
XXXXXXX XXXXX INTERNATIONAL
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxx X. Xxxx
--------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By: /s/ Xxxx X'Xxxxxxx
--------------------------------------
Name: Xxxx X'Xxxxxxx
Title: Managing Director
MEDITRUST OPERATING COMPANY
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: President
MEDITRUST CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
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