Exhibit 4.1
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INDENTURE
between
MPT Operating Partnership, L.P.,
as Issuer,
Medical Properties Trust, Inc.,
as Guarantor,
and
WILMINGTON TRUST COMPANY,
as Trustee
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Dated as of July 14, 2006
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TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.1. Definitions ............................................... 1
SECTION 1.2. Compliance Certificate and Opinions ....................... 11
SECTION 1.3. Forms of Documents Delivered to Trustee ................... 11
SECTION 1.4. Acts of Holders ........................................... 12
SECTION 1.5. Notices, Etc .............................................. 14
SECTION 1.6. Notice to Holders; Waiver ................................. 15
SECTION 1.7. Effect of Headings and Table of Contents .................. 15
SECTION 1.8. Successors and Assigns .................................... 15
SECTION 1.9. Separability Clause ....................................... 15
SECTION 1.10. Benefits of Indenture ..................................... 15
SECTION 1.11. Governing Law ............................................. 16
SECTION 1.12. Submission to Jurisdiction ................................ 16
SECTION 1.13. Non-Business Days ......................................... 16
ARTICLE II
Senior Note Forms
SECTION 2.1. Form of Senior Note ....................................... 16
SECTION 2.2. Restricted Legend ......................................... 21
SECTION 2.3. Form of Trustee's Certificate of Authentication ........... 23
SECTION 2.4. Temporary Senior Notes .................................... 23
SECTION 2.5. Definitive Senior Notes ................................... 24
ARTICLE III
The Senior Notes
SECTION 3.1. Payment of Principal and Interest ......................... 24
SECTION 3.2. Denominations ............................................. 27
SECTION 3.3. Execution, Authentication, Delivery and Dating ............ 27
SECTION 3.4. Global Senior Notes ....................................... 28
SECTION 3.5. Registration, Transfer and Exchange Generally ............. 30
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Senior Notes ........ 31
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SECTION 3.7. Persons Deemed Owners ..................................... 32
SECTION 3.8. Cancellation .............................................. 32
SECTION 3.9. RESERVED .................................................. 33
SECTION 3.10. RESERVED .................................................. 33
SECTION 3.11. Agreed Tax Treatment ...................................... 33
SECTION 3.12. CUSIP Numbers ............................................. 33
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture ................... 33
SECTION 4.2. Application of Trust Money ................................ 35
ARTICLE V
Remedies
SECTION 5.1. Events of Default ......................................... 35
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment ........ 36
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee ................................................ 37
SECTION 5.4. Trustee May File Proofs of Claim .......................... 38
SECTION 5.5. Trustee May Enforce Claim Without Possession of Senior
Notes .................................................. 38
SECTION 5.6. Application of Money Collected ............................ 38
SECTION 5.7. Limitation on Suits ....................................... 39
SECTION 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest ................................... 39
SECTION 5.9. Restoration of Rights and Remedies ........................ 39
SECTION 5.10. Rights and Remedies Cumulative ............................ 40
SECTION 5.11. Delay or Omission Not Waiver .............................. 40
SECTION 5.12. Control by Holders ........................................ 40
SECTION 5.13. Waiver of Past Defaults ................................... 40
SECTION 5.14. Undertaking for Costs ..................................... 41
SECTION 5.15. Waiver of Usury, Stay or Extension Laws ................... 41
ARTICLE VI
The Trustee
SECTION 6.1. Corporate Trustee Required ................................ 42
SECTION 6.2. Certain Duties and Responsibilities ....................... 42
SECTION 6.3. Notice of Defaults ........................................ 43
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SECTION 6.4. Certain Rights of Trustee ................................. 43
SECTION 6.5. May Hold Senior Notes ..................................... 45
SECTION 6.6. Compensation; Reimbursement; Indemnity .................... 46
SECTION 6.7. Resignation and Removal; Appointment of Successor ......... 47
SECTION 6.8. Acceptance of Appointment by Successor .................... 48
SECTION 6.9. Merger, Conversion, Consolidation or Succession to
Business ............................................... 48
SECTION 6.10. Not Responsible for Recitals or Issuance of Senior Notes .. 48
SECTION 6.11. Appointment of Authenticating Agent ....................... 49
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
SECTION 7.1. Company to Furnish Trustee Names and Addresses of
Holders ................................................ 50
SECTION 7.2. Preservation of Information, Communications to Holders .... 51
SECTION 7.3. Reports by Company and Trustee ............................ 51
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.1. Company and Guarantor May Consolidate, Etc., Only on
Certain Terms .......................................... 51
SECTION 8.2. Successor Company or Guarantor Substituted ................ 53
ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures without Consent of Holders ........ 54
SECTION 9.2. Supplemental Indentures with Consent of Holders ........... 54
SECTION 9.3. Execution of Supplemental Indentures ...................... 55
SECTION 9.4. Effect of Supplemental Indentures ......................... 55
SECTION 9.5. Reference in Senior Notes to Supplemental Indentures ...... 55
ARTICLE X
Covenants
SECTION 10.1. Payment of Principal, Premium and Interest ................ 56
SECTION 10.2. Money for Senior Note Payments to be Held in Trust ........ 56
SECTION 10.3. Statement as to Compliance ................................ 57
SECTION 10.4. Maximum Leverage .......................................... 57
SECTION 10.5. Additional Covenants ...................................... 57
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SECTION 10.6. Waiver of Covenants ....................................... 58
SECTION 10.7. Treatment of Senior Notes ................................. 58
SECTION 10.8. Change in Control ......................................... 58
SECTION 10.9. Calculation Agent ......................................... 59
ARTICLE XI
Redemption of Senior Notes
SECTION 11.1. Optional Redemption ....................................... 59
SECTION 11.2. Election to Redeem; Notice to Trustee ..................... 60
SECTION 11.3. Selection of Senior Notes to be Redeemed .................. 60
SECTION 11.4. Notice of Redemption ...................................... 61
SECTION 11.5. Deposit of Redemption Price ............................... 61
SECTION 11.6. Payment of Senior Notes Called for Redemption ............. 62
ARTICLE XII
Guarantee
SECTION 12.1. The Guarantee ............................................. 62
SECTION 12.2. Guarantee Unconditional, etc .............................. 63
SECTION 12.3. Reinstatement ............................................. 63
SECTION 12.4. Subrogation ............................................... 63
SCHEDULES
Schedule A Determination of LIBOR
Exhibit A Form of Officer's Certificate
Exhibit B Form of Officers' Certificate pursuant to Section 10.3
Exhibit C Form of Transferee Certificate to be Executed by Transferees other
than QIBs
Exhibit D Form of Transferor Certificate to be Executed by QIBs
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INDENTURE, dated as of July 14, 2006, between MPT Operating Partnership,
L.P., a Delaware limited partnership (the "Company"), Medical Properties Trust,
Inc., a Maryland corporation (the "Guarantor"), and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as Trustee (in such capacity, the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its unsecured Senior Notes (the "Senior
Notes"), and to provide the terms and conditions upon which the Senior Notes are
to be authenticated, issued and delivered; and the Guarantor has duly authorized
the issuance of its guarantee of the Senior Notes (the "Guarantee") under this
Indenture; and
WHEREAS, all things necessary to make this Indenture a valid agreement of
the Company and the Guarantor, in accordance with its terms, have been done.
Now, therefore, this Indenture Witnesseth:
For and in consideration of the premises and the purchase of the Senior
Notes by the Holders (as hereinafter defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the Senior
Notes, as follows:
ARTICLE I
Definitions and Other Provisions of General Application
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided
or unless the context otherwise requires:
(a) the terms defined in this Article I have the meanings assigned to
them in this Article I;
(b) the words "include", "includes" and "including" shall be deemed to
be followed by the phrase "without limitation";
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP;
(d) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture;
(e) the words "hereby", "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision;
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(f) a reference to the singular includes the plural and vice versa;
and
(g) the masculine, feminine or neuter genders used herein shall
include the masculine, feminine and neuter genders.
"Act" when used with respect to any Holder, has the meaning specified in
Section 1.4(a).
"Additional Notes" means the Senior Notes due 2016 (other than the Initial
Notes) issued under this Indenture in accordance with Section 3.3 hereof.
"Additional Interest" means the interest, if any, that shall accrue on any
amounts payable on the Senior Notes, the payment of which has not been made on
the applicable Interest Payment Date and which shall accrue at the rate per
annum specified or determined as specified in such Senior Note.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Applicable Depositary Procedures" means, with respect to any transfer or
transaction involving a Global Senior Note or beneficial interest therein, the
rules and procedures of the Depositary for such Senior Note, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 6.11 to act on behalf of the Trustee to authenticate the Senior
Notes.
"Board of Directors" means the board of directors of the Company or the
Guarantor, as the context requires, or any duly authorized committee of that
board.
"Board Resolution" means a copy of a resolution certified by the Secretary
or an Assistant Secretary of the Company or the Guarantor, as the context
requires, to have been duly adopted by the Board of Directors and to be in full
force and effect on the date of such certification.
"Breakage Costs" means any and all reasonable costs and fees of any Holder
(including, without limitation, the reasonable fees and expenses of any counsel
engaged by such Holder to enforce the obligations of the Company hereunder) (as
determined by such holder), directly associated or incurred in connection with
unwinding, terminating, modifying or otherwise breaking of any interest rate
swap or other interest rate hedging arrangement entered into with respect to the
interest rate on the Senior Notes prior to July 30, 2011 where such unwinding,
termination, modification or breaking is caused by the payment of principal on
the Senior Notes prior to July 30, 2011 in connection with a repurchase of the
Senior Notes pursuant to Section 10.8.
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"Business Day" means any day other than (i) a Saturday or Sunday, (ii) a
day on which banking institutions in the City of New York or in Birmingham,
Alabama are authorized or required by law, regulation or executive order to
remain closed or (iii) a day on which the Corporate Trust Office of the Trustee
is closed for business.
"Calculation Agent" has the meaning specified in Section 10.9(a).
"Change of Control" shall be deemed to have occurred upon the happening of
any of the following events:
(i) the approval by the holders of Equity Interests of the Company of
a transaction that would result in the reorganization, merger or
consolidation of the Company with one or more other persons, other than a
transaction following which:
(A) more than 50% of the Equity Interests of the entity resulting
from such transaction are beneficially owned (within the meaning of
Rule 13d-3 promulgated under Exchange Act, as defined herein) in
substantially the same relative proportions by persons who,
immediately prior to such transaction, beneficially owned (within the
meaning of Rule 13d-3 promulgated under the Exchange Act) more than
50% of the outstanding Equity Interests in the Company; and
(B) more than 50% of the securities entitled to vote generally in
the election of directors, managing member(s) or general partner(s),
as the case may be, of the entity resulting from such transaction are
beneficially owned (within the meaning of Rule 13d-3 promulgated under
the Exchange Act) in substantially the same relative proportions by
persons who, immediately prior to such transaction, beneficially owned
(within the meaning of Rule 13d-3 promulgated under the Exchange Act)
more than 50% of the securities entitled to vote generally in the
election of directors, managing member(s) or general partner(s), as
the case may be, of the Company;
(ii) the acquisition of: (A) all or substantially all of the assets of
the Company or (B) beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 35% or more of the Equity Interests
of the Company entitled to vote generally in the election of directors,
managing member(s) or general partner(s), as the case may be, by any person
or by any persons acting in concert, or approval by the holders of Equity
Interests of the Company or by the directors, managing member(s) or general
partner(s), as the case may be, of any transaction which would result in an
acquisition described in clauses (ii)(A) or (B);
(iii) a complete liquidation or dissolution of the Company, or
approval by the holders of Equity Interests of the Company or by the
directors, managing
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member(s) or general partner(s), as the case may be, of a plan for such
liquidation or dissolution;
(iv) the occurrence of any event if, immediately following such event,
at least 50% of the members of the Board of Directors do not belong to any
of the following groups:
(A) individuals who were members of the Board of Directors on the
date of this Indenture; or
(B) individuals who first became members of the Board of
Directors after the date of this Indenture either:
(1) upon election to serve as a member of the Board of
Directors by affirmative vote of three-quarters of the members of
such board, or of a nominating committee thereof, in office at
the time of such first election; or
(2) upon election by the holders of Equity Interests of the
Company to serve as a member of the Board of Directors, but only
if nominated for election by affirmative vote of three-quarters
of the members of the Board of Directors of the Company, or of a
nominating committee thereof, in office at the time of such first
nomination;
provided, however, that such individual's election or nomination did not
result from an actual or threatened election contest or other actual or
threatened solicitation of proxies or consents other than by or on behalf
of the Board of Directors;
(v) in the case of any Company that is a limited liability company,
removal, withdrawal or retirement of any managing member or manager, and in
the case of any Company that is a limited partnership, removal, withdrawal
or retirement of any general partner;
(vi) in the case of any Company that is a limited liability company or
a limited partnership, any Change of Control event with respect to any
managing member or general partner described in clauses (i), (ii), (iii),
(iv) or (v);
(vii) any event that would result in the possession, directly or
indirectly, whether by equity ownership, contractual arrangement, or
otherwise of the power to direct or cause the direction of the management
or policies of the Company by any Person not in possession of such power as
of the date hereof; or
(viii) any other event that would be described in this definition of
"Change of Control" if the term "Guarantor" were substituted for the term
"Company" herein.
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In no event, however, shall a Change of Control be deemed to have occurred
as a result of any acquisition of securities or assets of the Company, the
Guarantor, or a subsidiary of either of them, by the Company, the Guarantor, or
any subsidiary of either of them, or by any employee benefit plan maintained by
any of them.
"Change of Control Notice" has the meaning specified in Section 10.8(b).
"Closing Date" means the date specified in the relevant purchase or
placement agreement for the offer and sale of any of the Senior Notes issued
pursuant to this Indenture.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person.
"Company Request" and "Company Order" mean, respectively, the written
request or order signed in the name of the Company by its Chairman of the Board
of Directors, its Vice Chairman of the Board of Directors, its Chief Executive
Officer, President or a Vice President, and by its Chief Financial Officer,
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Subsidiary" means at any date, any Subsidiary or other Person
the accounts of which would be consolidated with those of the Guarantor or the
Company (or any other Person, as the context may require hereunder) in its
consolidated financial statements if such statements were prepared as of such
date.
"Corporate Trust Office" means the principal office of the Trustee at which
at any particular time its corporate trust business shall be administered, which
office at the date of this Indenture is located at Xxxxxx Square North, 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Corporate
Capital Markets, or such other address as the Trustee may designate from time to
time by notice to the Holders, the Company and the Guarantor or the principal
corporate trust office of any successor trustee.
"Defaulted Interest" has the meaning specified in Section 3.1(c).
"Defined Period" means a period ending on the last day of each calendar
month and comprised of the three (3) most recent calendar months then ended
(taken as one accounting period) unless some other period is specified in this
Indenture; provided, that the first Defined Period following the date of this
Indenture shall consist of the first full calendar month following the date of
this Indenture (on an annualized basis) and the second Defined Period following
the date of this Indenture shall consist of the first and second full calendar
months following the date of this Indenture (on an annualized basis).
"Definitive Senior Note Certificates" means Senior Notes issued in
certificated, fully registered form that are not Global Senior Notes.
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"Depositary" means an organization registered as a clearing agency under
the Exchange Act that is designated as Depositary by the Company or any
successor thereto. DTC will be the initial Depositary.
"Depositary Participant" means a broker, dealer, bank, other financial
institution or other Person for whom from time to time a Depositary effects
book-entry transfers and pledges of securities deposited with the Depositary.
"Dollar" or "$" means the currency of the United States of America that, as
at the time of payment, is legal tender for the payment of public and private
debts.
"DTC" means The Depository Trust Company, a New York corporation.
"Equity Interests" means any of (a) the partnership interests (general or
limited) in a partnership, (b) the membership interests in a limited liability
company or (c) the shares or stock interests (both common stock and preferred
stock) in a corporation.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the Securities Exchange Act of 1934 or any statute
successor thereto, in each case as amended from time to time.
"Expiration Date" has the meaning specified in Section 1.4(h).
"GAAP" means United States generally accepted accounting principles,
consistently applied, from time to time in effect.
"Global Senior Note" means a Senior Note that evidences all or part of the
Senior Notes, the ownership and transfers of which shall be made through book
entries by a Depositary.
"Government Obligation" means (a) any security that is (i) a direct
obligation of the United States of America of which the full faith and credit of
the United States of America is pledged or (ii) an obligation of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America, or the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which, in
either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (b) any depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act) or trust company as custodian with
respect to any Government Obligation that is specified in clause (a) above and
held by such bank for the account of the holder of such depositary receipt, or
with respect to any specific payment of principal of or interest on any
Government Obligation that is so specified and held, provided, that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received
by the custodian in respect of the Government Obligation or the specific payment
of principal or interest of the Government Obligation evidenced by such
depositary receipt.
"Guarantee" has the meaning specified in the first recital of this
Indenture.
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"Guarantor" means the Person named as the "Guarantor" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor Person.
"Holder" means a Person in whose name a Senior Note is registered in the
Securities Register.
"Indenture" means this instrument as originally executed or as it may from
time to time be amended or supplemented by one or more amendments or indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Initial Notes" means the $65,000,000 aggregate principal amount of the
Company's Senior Notes due 2016 issued under this Indenture on the date hereof.
"Interest Payment Date" means January 30th, April 30th, July 30th and
October 30th of each year, commencing on October 30, 2006, during the term of
this Indenture.
"Investment Company Act" means the Investment Company Act of 1940 or any
successor statute thereto, in each case as amended from time to time.
"LIBOR" has the meaning specified in Schedule A.
"LIBOR Business Day" has the meaning specified in Schedule A.
"LIBOR Determination Date" has the meaning specified in Schedule A.
"Maturity," when used with respect to any Senior Note, means the date on
which the principal of such Senior Note or any installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in Section
5.1(c).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, a Vice Chairman of the Board, the Chief Executive Officer, President or a
Vice President, and by the Chief Financial Officer, Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary, of the Company or the
Guarantor, as the context requires, and delivered to the Trustee.
"Operative Documents" means the Placement Agreement, this Indenture, the
Subscription Agreements and the Senior Notes.
"Opinion of Counsel" means a written opinion of counsel, who may be counsel
for or an employee of the Company or the Guarantor or any Affiliate of the
Company or the Guarantor.
"Original Issue Date" means the date of original issuance of each Senior
Note.
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"Outstanding" means, when used in reference to any Senior Notes, as of the
date of determination, all Senior Notes theretofore authenticated and delivered
under this Indenture, except:
(i) Senior Notes theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Senior Notes for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company or the Guarantor) in trust or set
aside and segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Senior Notes; provided, that,
if such Senior Notes are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Senior Notes that have been paid, or in substitution for or in
lieu of which other Senior Notes have been authenticated and delivered
pursuant to the provisions of this Indenture, unless proof satisfactory to
the Trustee is presented that any such Senior Notes are held by Holders in
whose hands such Senior Notes are valid, binding and legal obligations of
the Company;
provided, that, in determining whether the Holders of the requisite principal
amount of Outstanding Senior Notes have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Senior Notes
owned by the Company, the Guarantor or any other obligor upon the Senior Notes
or any Affiliate of the Company, the Guarantor or such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Senior Notes that a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Senior Notes so owned that have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Senior Notes and that
the pledgee is not the Company, the Guarantor or any other obligor upon the
Senior Notes or any Affiliate of the Company, the Guarantor or such other
obligor.
"Paying Agent" means the Trustee or any Person authorized by the Company to
pay the principal of or any premium or interest on, or other amounts in respect
of, any Senior Notes on behalf of the Company.
"Person" means a legal person, including any individual, corporation,
company, estate, partnership, joint venture, association, joint stock company,
limited liability company, trust, unincorporated association, government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Place of Payment" means, with respect to the Senior Notes, the Corporate
Trust Office of the Trustee.
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"Placement Agent" means the Person identified as Placement Agent under the
relevant Placement Agreement for the offer and sale of Senior Notes.
"Placement Agreement" means the Placement Agreement, dated as of July 14,
2006, executed and delivered by the Company, the Guarantor and X.X. Xxxxxx
Securities Inc., as placement agent, and each additional Placement Agreement, if
any, entered into by the Company and the Guarantor for the offer and sale of
Senior Notes pursuant to this Indenture.
"Predecessor Senior Note" of any particular Senior Note means every
previous Senior Note evidencing all or a portion of the same debt as that
evidenced by such particular Senior Note. For the purposes of this definition,
any security authenticated and delivered under Section 3.6 in lieu of a
mutilated, destroyed, lost or stolen Senior Note shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Senior Note.
"Purchasers" means, together, each Person identified as a Purchaser under
the Placement Agreement(s) and the related Subscription Agreement(s).
"QIB" means a "qualified institutional buyer" as defined in Rule 144A under
the Securities Act.
"Redemption Date" means, when used with respect to any Senior Note to be
redeemed, in whole or in part, the date fixed for such redemption by or pursuant
to this Indenture.
"Redemption Price" means, when used with respect to any Senior Note to be
redeemed, in whole or in part, the price at which such Senior Note or portion
thereof is to be redeemed as fixed by or pursuant to this Indenture.
"Regular Record Date" for the interest payable on any Interest Payment Date
with respect to the Senior Notes means the date that is fifteen (15) days
preceding such Interest Payment Date (whether or not a Business Day).
"Repurchase Notice" has the meaning specified in Section 10.8(a).
"Responsible Officer" means, with respect to the Trustee, any Senior Vice
President, any Vice President, any Assistant Vice President, the Secretary, any
Assistant Secretary, the Treasurer, any Assistant Treasurer, any Trust Officer
or Assistant Trust Officer, or any other officer in the Corporate Trust Office
of the Trustee with direct responsibility for the administration of this
Indenture and also means, with respect to a particular corporate trust matter,
any other officer of the Trustee to whom such matter is referred because of that
officer's knowledge of and familiarity with the particular subject.
"Securities Act" means the Securities Act of 1933 or any successor statute
thereto, in each case as amended from time to time.
"Securities Register" and "Securities Registrar" have the respective
meanings specified in Section 3.5.
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"Senior Notes" or "Senior Note" means the Initial Notes and the Additional
Notes, to the extent applicable, authenticated and delivered under this
Indenture.
"Senior Notes Certificate" means a certificate evidencing ownership of
Senior Notes, substantially in the form provided in Article II.
"SFAS 141 Intangibles" means that portion of the purchase price of any
property of the Guarantor and its Consolidated Subsidiaries that is allocated to
leasehold intangibles and customer relationship intangibles pursuant to
Statement of Financial Accounting Standard No. 141, Accounting for Business
Combinations.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.1(c)(i).
"Stated Maturity" means July 30, 2016.
"Subscription Agreements" means, together, each Senior Notes Subscription
Agreement entered into by the Company and the Guarantor and each Purchaser named
therein in connection with the relevant Placement Agreement.
"Subsidiary" means a Person more than fifty percent (50%) of the
outstanding voting stock or other voting interests of which is owned, directly
or indirectly, by the Company or by one or more other Subsidiaries, or by the
Company and one or more other Subsidiaries. For purposes of this definition,
"voting stock" means stock that ordinarily has voting power for the election of
directors, whether at all times or only so long as no senior class of stock has
such voting power by reason of any contingency.
"Total Asset Value" means the book value, without giving effect to
depreciation of all assets or amortization of SFAS 141 Intangibles of the
Guarantor and its Consolidated Subsidiaries at such time; less (a) the amount,
if any, of the Guarantor's investment in any unconsolidated subsidiary, joint
venture or other similar entity, and (b) all amounts appearing on the assets
side of its consolidated balance sheet representing intangible assets under GAAP
(other than SFAS 141 Intangibles).
"Total Indebtedness" means, as of a given date, all liabilities of the
Guarantor and its Consolidated Subsidiaries which would, in conformity with
GAAP, be properly classified as a liability on a consolidated balance sheet of
the Guarantor and its Consolidated Subsidiaries as of such date, excluding any
amounts categorized as accrued expenses, accrued dividends, deposits held,
deferred revenues, minority interests and other liabilities not directly
associated with the borrowing of money.
"Trustee" means the Person named as the "Trustee" in the first paragraph of
this Indenture, solely in its capacity as such and not in its individual
capacity, until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and, thereafter, "Trustee" shall mean
or include each Person who is then a Trustee hereunder.
10
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended and
as in effect on the date of this Indenture.
SECTION 1.2. Compliance Certificate and Opinions.
(a) Upon any application or request by the Company or the Guarantor to the
Trustee to take any action under any provision of this Indenture, the Company or
the Guarantor shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent (including covenants compliance with which constitutes
a condition precedent), if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that
in the opinion of such counsel all such conditions precedent (including
covenants compliance with which constitutes a condition precedent), if any, have
been complied with, except that, in the case of any such application or request
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
(b) Every certificate or opinion delivered to the Trustee with respect to
compliance with a condition or covenant provided for in this Indenture (other
than the certificate provided pursuant to Section 10.3) shall include:
(i) a statement by each individual signing such certificate or opinion
that such individual has read such covenant or condition and the
definitions herein relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions of such individual
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of such individual, he or she
has made such examination or investigation as is necessary to enable him or
her to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(iv) a statement as to whether, in the opinion of such individual,
such condition or covenant has been complied with.
SECTION 1.3. Forms of Documents Delivered to Trustee.
(a) In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
(b) Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, or certificate or representations by counsel, unless such officer
knows, or after reasonable inquiry should know, that the Opinion of Counsel, or
certificate or representations with respect to matters upon which
11
his or her certificate or opinion is based are erroneous. Any such Opinion of
Counsel, or certificate or representation may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company or the Guarantor stating that the information
with respect to such factual matters is in the possession of the Company or the
Guarantor, unless such counsel knows, or after reasonable inquiry should know,
that the certificate or opinion or representations with respect to such matters
are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
(d) Whenever, subsequent to the receipt by the Trustee of any Board
Resolution, Officers' Certificate, Opinion of Counsel or other document or
instrument, a clerical, typographical or other inadvertent or unintentional
error or omission shall be discovered therein, a new document or instrument may
be substituted therefor in corrected form with the same force and effect as if
originally received in the corrected form and, irrespective of the date or dates
of the actual execution and/or delivery thereof, such substitute document or
instrument shall be deemed to have been executed and/or delivered as of the date
or dates required with respect to the document or instrument for which it is
substituted. Without limiting the generality of the foregoing, any Senior Notes
issued under the authority of such defective document or instrument shall
nevertheless be the valid obligations of the Company entitled to the benefits of
this Indenture equally and ratably with all other Outstanding Senior Notes.
SECTION 1.4. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided by this Indenture to be given to or taken by Holders
may be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by an agent thereof duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments (including any
appointment of an agent) is or are delivered to the Trustee, and, where it is
hereby expressly required, to the Company or the Guarantor. Such instrument or
instruments (and the action or actions embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company or the
Guarantor, if made in the manner provided in this Section 1.4.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by
the certificate of any notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him or her the execution thereof. Where such
execution is by a Person acting in other than his or her individual capacity,
such certificate or affidavit shall also constitute sufficient proof of his or
her authority. The fact and date of the execution by any Person of any such
instrument or writing, or the authority of the
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Person executing the same, may also be proved in any other manner that the
Trustee deems sufficient and in accordance with such reasonable rules as the
Trustee may determine.
(c) The ownership of Senior Notes shall be proved by the Securities
Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other action by the Holder of any Senior Note shall bind every future Holder
of the same Senior Note and the Holder of every Senior Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, the Company or
the Guarantor in reliance thereon, whether or not notation of such action is
made upon such Senior Note.
(e) Without limiting the foregoing, a Holder entitled to take any action
hereunder with regard to any particular Senior Note may do so with regard to all
or any part of the principal amount of such Senior Note or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
(f) Except as set forth in paragraph (g) of this Section 1.4, the Company
may set any day as a record date for the purpose of determining the Holders of
Outstanding Senior Notes entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made or taken by Holders of Senior
Notes. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Senior Notes on such record date, and no other Holders, shall be
entitled to take the relevant action, whether or not such Holders remain Holders
after such record date; provided, that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date by Holders
of the requisite principal amount of Outstanding Senior Notes on such record
date. Nothing in this paragraph shall be construed to prevent the Company from
setting a new record date for any action for which a record date has previously
been set pursuant to this paragraph (whereupon the record date previously set
shall automatically and with no action by any Person be canceled and of no
effect). Promptly after any record date is set pursuant to this paragraph, the
Company, at its own expense, shall cause notice of such record date, the
proposed action by Holders and the applicable Expiration Date to be given to the
Trustee in writing and to each Holder of Senior Notes in the manner set forth in
Section 1.6.
(g) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Senior Notes entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration or rescission or annulment thereof referred to in Section 5.2,
(iii) any request to institute proceedings referred to in Section 5.7(b) or (iv)
any direction referred to in Section 5.12. If any record date is set pursuant to
this paragraph, the Holders of Outstanding Senior Notes on such record date, and
no other Holders, shall be entitled to join in such notice, declaration, request
or direction, whether or not such Holders remain Holders after such record date;
provided, that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Senior Notes on such record date. Nothing in this
paragraph shall be construed to prevent the Trustee from setting a new record
date for any action for which a record date has previously been set pursuant to
this paragraph (whereupon the record date previously set shall
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automatically and with no action by any Person be canceled and of no effect).
Promptly after any record date is set pursuant to this paragraph, the Trustee,
at the Company's expense, shall cause notice of such record date, the proposed
action by Holders and the applicable Expiration Date to be given to the Company
in writing and to each Holder of Senior Notes in the manner set forth in Section
1.6.
(h) With respect to any record date set pursuant to paragraph (f) or (g) of
this Section 1.4, the party hereto that sets such record date may designate any
day as the "Expiration Date" and from time to time may change the Expiration
Date to any earlier or later day; provided, that no such change shall be
effective unless notice of the proposed new Expiration Date is given to the
other party hereto in writing, and to each Holder of Senior Notes in the manner
set forth in Section 1.6, on or prior to the existing Expiration Date. If an
Expiration Date is not designated with respect to any record date set pursuant
to this Section 1.4, the party hereto that set such record date shall be deemed
to have initially designated the ninetieth (90th) day after such record date as
the Expiration Date with respect thereto, subject to its right to change the
Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no
Expiration Date shall be later than the one hundred and eightieth (180th) day
after the applicable record date.
SECTION 1.5. Notices, Etc.
Any request, demand, authorization, direction, notice, consent, waiver, Act
of Holders, or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with:
(a) the Trustee by any Holder, the Company or the Guarantor shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office,
(b) the Company or the Guarantor by the Trustee or any Holder shall be
sufficient for every purpose hereunder if in writing and mailed, first class,
postage prepaid, to the Company addressed to it at 0000 Xxxxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000, Attn: Chief Financial Officer, or at any
other address previously furnished in writing to the Trustee by the Company, or
to the Guarantor addressed to it at 0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxxxx 00000, Attn: Chief Financial Officer, or at any other
address previously furnished in writing to the Trustee by the Guarantor,
(c) the Placement Agent by the Trustee, the Company, the Guarantor or any
Holder or any beneficial owner of the Senior Notes, shall be sufficient for
every purpose hereunder if in writing and mailed, first-class postage prepaid to
the Placement Agent at the address provided in Section 11.2 of the Placement
Agreement, or any other address previously furnished by the Placement Agent, or
(d) the Purchasers by the Trustee, the Company, the Guarantor, any Holder
or beneficial owner of the Senior Notes, shall be sufficient for every purpose
hereunder if in writing and mailed first-class postage prepaid to the Purchasers
at the address provided in Section 3.1 of the Subscription Agreement, or any
other address previously furnished by such Purchaser.
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SECTION 1.6. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first class, postage prepaid, to each Holder affected
by such event to the address of such Holder as it appears in the Securities
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. If, by reason of the suspension
of or irregularities in regular mail service or for any other reason, it shall
be impossible or impracticable to mail notice of any event to Holders when said
notice is required to be given pursuant to any provision of this Indenture, then
any manner of giving such notice as shall be satisfactory to the Trustee shall
be deemed to be a sufficient giving of such notice. In any case where notice to
Holders is given by mail, neither the failure to mail such notice, nor any
defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Any request, demand,
authorization, direction, notice, consent or waiver required by or permitted
under this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication. Where this
Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
SECTION 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction of this Indenture.
SECTION 1.8. Successors and Assigns.
This Indenture shall be binding upon and shall inure to the benefit of any
successor to the Company, the Guarantor and the Trustee, including any successor
by operation of law. Except in connection with a transaction involving the
Company that is permitted under Article VIII and pursuant to which the assignee
agrees in writing to perform the Company's obligations hereunder, the Company
shall not assign its obligations hereunder.
SECTION 1.9. Separability Clause.
If any provision in this Indenture or in the Senior Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby, and
there shall be deemed substituted for the provision at issue a valid, legal and
enforceable provision as similar as possible to the provision at issue.
SECTION 1.10. Benefits of Indenture.
Nothing in this Indenture or in the Senior Notes, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns, and the Holders of the Senior Notes any benefit or any legal or
equitable right, remedy or claim under this Indenture.
15
SECTION 1.11. Governing Law.
This Indenture and the rights and obligations of each of the Holders, the
Company, the Guarantor and the Trustee shall be construed and enforced in
accordance with and governed by the laws of the State of New York without
reference to its conflict of laws provisions (other than Section 5-1401 of the
General Obligations Law).
SECTION 1.12. Submission to Jurisdiction.
ANY LEGAL ACTION OR PROCEEDING BY OR AGAINST ANY PARTY HERETO OR WITH
RESPECT TO OR ARISING OUT OF THIS INDENTURE MAY BE BROUGHT IN OR REMOVED TO THE
COURTS OF THE STATE OF NEW YORK, IN AND FOR THE COUNTY OF NEW YORK, OR OF THE
UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK (IN EACH CASE
SITTING IN THE BOROUGH OF MANHATTAN). BY EXECUTION AND DELIVERY OF THIS
INDENTURE, EACH PARTY ACCEPTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS (AND
COURTS OF APPEALS THEREFROM) FOR LEGAL PROCEEDINGS ARISING OUT OF OR IN
CONNECTION WITH THIS INDENTURE.
SECTION 1.13. Non-Business Days.
If any Interest Payment Date, Redemption Date or Stated Maturity of any
Senior Note shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or the Senior Notes)
payment of interest, premium, if any, or principal or other amounts in respect
of such Senior Note shall not be made on such date, but shall be made on the
next succeeding Business Day (and no interest shall accrue in respect of the
amounts whose payment is so delayed for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be, until such
next succeeding Business Day) except that, if such Business Day falls in the
next succeeding calendar year, such payment shall be made on the immediately
preceding Business Day, in each case with the same force and effect as if made
on the Interest Payment Date, Redemption Date or at the Stated Maturity.
ARTICLE II
Senior Note Forms
SECTION 2.1. Form of Senior Note.
Any Senior Note issued hereunder shall be in substantially the following
form:
MPT Operating Partnership, L.P.
Senior Note due 2016
CUSIP No. ___________
No. _____________ $__________
16
MPT Operating Partnership, L.P., a limited partnership organized and
existing under the laws of Delaware (hereinafter called the "Company," which
term includes any successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to _______________, or registered
assigns, the principal sum of $__________ DOLLARS [if the Senior Note is a
Global Senior Note, then insert-- or such other principal amount represented
hereby as may be set forth in the records of the Securities Registrar
hereinafter referred to in accordance with the Indenture] on July 30, 2016 (the
"Stated Maturity")]. The Company further promises to pay interest on said
principal sum from and including _______, 200__, or from and including the most
recent Interest Payment Date to which interest has been paid or duly provided
for, quarterly in arrears, to but excluding and on January 30th, April 30th,
July 30th and October 30th of each year, commencing on ________, 200__, or if
any such day is not a Business Day, on the next succeeding Business Day (and no
interest shall accrue in respect of the amounts whose payment is so delayed for
the period from and after such Interest Payment Date until such next succeeding
Business Day), except that, if such Business Day falls in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case, with the same force and effect as if made on the Interest
Payment Date, at a fixed rate per annum equal to 7.871% through the Interest
Payment Date in July, 2011, and a variable rate per annum, reset quarterly,
equal to LIBOR plus 2.30% thereafter, until the principal hereof is paid or duly
provided for or made available for payment; provided, that any overdue
principal, premium, if any, or any overdue installment of interest shall bear
Additional Interest (to the extent that the payment of such interest shall be
legally enforceable) at a fixed rate per annum equal to 7.871% through the
Interest Payment Date in July, 2011, and a variable rate per annum, reset
quarterly, equal to LIBOR plus 2.30% thereafter, compounded quarterly, from and
including the dates such amounts are due to but excluding the dates such amounts
are paid or made available for payment, and such interest shall be payable on
demand.
The amount of interest payable for any interest period shall be computed
and paid on the basis of a 360-day year and the actual number of days elapsed in
the relevant interest period. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date shall, as provided in the
Indenture, be paid to the Person in whose name this Senior Note (or one or more
Predecessor Senior Notes) is registered at the close of business on the Regular
Record Date for such interest installment. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name this
Senior Note (or one or more Predecessor Senior Notes) is registered at the close
of business on a Special Record Date for the payment of such Defaulted Interest
to be fixed by the Trustee, notice whereof shall be given to Holders of Senior
Notes not less than ten (10) days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange or automated quotation system on which the Senior Notes
may be listed, traded or quoted and upon such notice as may be required by such
exchange or automated quotation system, all as more fully provided in the
Indenture.
The Indenture provides that if an Event of Default shall have occurred and
be continuing, neither the Guarantor nor the Company shall (i) declare or pay
any dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of the Company's or the Gurantor's
Equity Interests, (ii) vote in favor of or permit or otherwise allow
17
any of its Subsidiaries to declare or pay any dividends or distributions on, or
redeem, purchase, acquire or make a liquidation payment with respect to or
otherwise retire, any of such Subsidiary's Equity Interests entitling the
holders thereof to a stated rate of return other than dividends or distributions
on Equity Interests payable solely to the Company, the Guarantor or any
Subsidiary thereof (for the avoidance of doubt, whether such Equity Interests
are perpetual or otherwise), or (iii) make any payment of principal of or any
interest or premium on or repay, repurchase or redeem any debt securities of the
Company that rank pari passu in all respects with or junior in interest to the
Senior Notes.
Payment of principal of, premium, if any, and interest on this Senior Note
shall be made 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.
Payments of principal, premium, if any, and interest due at the Maturity of this
Senior Note shall be made at the Place of Payment upon surrender of such Senior
Notes to the Paying Agent, and payments of interest shall be made, subject to
such surrender where applicable, by wire transfer at such place and to such
account at a banking institution in the United States as may be designated in
writing to the Paying Agent at least ten (10) Business Days prior to the date
for payment by the Person entitled thereto unless proper written wire transfer
instructions have not been received by the relevant record date, in which case
such payments shall be made by check mailed to the address of such Person as
such address shall appear in the Security Register.
This Senior Note shall be entitled to the benefit of the guarantee of
Medical Properties Trust, Inc., the "Guarantor," which term includes any
successor permitted under the Indenture, as specified in the Indenture (the
"Guarantee").
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature of one of its authorized signatories, this Senior
Note shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
This Senior Note is one of a duly authorized issue of securities of the
Company (the "Senior Notes") issued under the Indenture, dated as of July 14,
2006 (the "Indenture"), between the Company, Guarantor and Wilmington Trust
Company, as Trustee (in such capacity, the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Guarantor, the Trustee and the Holders of the Senior Notes, and of the terms
upon which the Senior Notes are, and are to be, authenticated and delivered.
This Senior Note shall be part of a single series of notes known as the
Company's Senior Notes due 2016. The aggregate principal amount of the Senior
Notes to be issued under the Indenture after the execution and delivery of the
Indenture until the Interest Payment Date in October, 2006, provided that no
Event of Default has occurred and is continuing, is limited to $100,000,000
(except for Senior Notes authenticated and delivered upon transfer of, or in
exchange for, or in lieu of other Senior Notes).
All terms used in this Senior Note that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
18
The Company may, on any Interest Payment Date, at its option, upon not less
than thirty (30) days' nor more than sixty (60) days' written notice to the
Holders of the Senior Notes (unless a shorter notice period shall be
satisfactory to the Trustee) on or after July 30, 2011 and subject to the terms
and conditions of Article XI of the Indenture, redeem this Senior Note in whole
at any time or in part from time to time at a Redemption Price equal to one
hundred percent (100%) of the principal amount hereof, together, in the case of
any such redemption, with accrued interest, including any Additional Interest,
and any premium to but excluding the date fixed for redemption.
In the event of redemption of this Senior Note in part only, a new Senior
Note or Senior Notes for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof. If less than all the
Senior Notes are to be redeemed, the particular Senior Notes to be redeemed
shall be selected not more than sixty (60) days prior to the Redemption Date by
the Trustee from the Outstanding Senior Notes not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the selection for redemption of a portion of the principal
amount of any Senior Note.
The Indenture permits, with certain exceptions as therein provided, the
Company, the Guarantor and the Trustee at any time to enter into a supplemental
indenture or indentures for the purpose of modifying in any manner the rights
and obligations of the Company, the Guarantor and of the Holders of the Senior
Notes, with the consent of the Holders of not less than a majority in principal
amount of the Outstanding Senior Notes. The Indenture also contains provisions
permitting Holders of specified percentages in principal amount of the Senior
Notes, on behalf of the Holders of all Senior Notes, to waive compliance by the
Company or the Guarantor with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Senior Note shall be conclusive and binding upon
such Holder and upon all future Holders of this Senior Note and of any Senior
Note issued upon the registration of transfer hereof or in exchange herefor or
in lieu hereof, whether or not notation of such consent or waiver is made upon
this Senior Note.
No reference herein to the Indenture and no provision of this Senior Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium, if any,
and interest, including any Additional Interest, on this Senior Note at the
times, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Senior Note is registrable in the Securities
Register, upon surrender of this Senior Note for registration of transfer at the
office or agency of the Company maintained for such purpose, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar and duly executed by, the Holder hereof or
such Holder's attorney duly authorized in writing, and thereupon one or more new
Senior Notes, of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
19
The Senior Notes are issuable only in registered form without coupons in
minimum denominations of $100,000 and any integral multiple of $1,000 in excess
thereof. As provided in the Indenture and subject to certain limitations therein
set forth, Senior Notes are exchangeable for a like aggregate principal amount
of Senior Notes and of like tenor of a different authorized denomination, as
requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
The Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee may treat the Person in whose name this Senior Note is
registered as the owner hereof for all purposes, whether or not this Senior Note
be overdue, and neither the Company, the Guarantor, the Trustee nor any such
agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of principal of or the interest on
this Senior Note, or for any claims based hereon, or otherwise in respect
hereof, or based on or in respect of the Indenture or any indenture supplement
thereto, against any past, present or future stockholder, member, partner,
employee, officer or director, as such, of either the Company (except to the
extent of the obligations of the Guarantor under the Guarantee) or the Guarantor
or any successor, either directly or through the Company or the Guarantor or any
successor, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
The Company and, by its acceptance of this Senior Note or a beneficial
interest herein, the Holder of, and any Person that acquires a beneficial
interest in, this Senior Note agree that, for United States federal, state and
local tax purposes, it is intended that this Senior Note constitute
indebtedness.
This Senior Note shall be construed and enforced in accordance with and
governed by the laws of the State of New York, without reference to its conflict
of laws provisions (other than Section 5-1401 of the General Obligations Law).
IN WITNESS WHEREOF, the Company has duly executed this instrument this ____
day of ____________, 2006.
MPT OPERATING PARTNERSHIP, L.P.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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SECTION 2.2. Restricted Legend.
(a) Any Senior Note issued hereunder shall bear a legend in substantially
the following form:
"[IF THIS SENIOR NOTE IS A GLOBAL SENIOR NOTE INSERT: THIS SENIOR NOTE IS A
GLOBAL SENIOR NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC") OR
A NOMINEE OF DTC. THIS SENIOR NOTE IS EXCHANGEABLE FOR SENIOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN DTC OR ITS NOMINEE ONLY IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF
THIS SENIOR NOTE (OTHER THAN A TRANSFER OF THIS SENIOR NOTE AS A WHOLE BY
DTC TO A NOMINEE OF DTC OR BY A NOMINEE OF DTC TO DTC OR ANOTHER NOMINEE OF
DTC) MAY BE REGISTERED EXCEPT IN LIMITED CIRCUMSTANCES.
UNLESS THIS SENIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY SENIOR NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.]
THE SENIOR NOTES REPRESENTED BY THIS CERTIFICATE WERE ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND SUCH SENIOR NOTES, AND ANY INTEREST
THEREIN, MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF ANY SENIOR NOTES IS HEREBY NOTIFIED THAT THE SELLER OF THE SENIOR NOTES
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A UNDER THE SECURITIES ACT.
THE HOLDER OF THE SENIOR NOTES REPRESENTED BY THIS CERTIFICATE, BY ITS
ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY INVESTOR
ACCOUNT FOR WHICH IT PURCHASED SENIOR NOTES, FOR THE BENEFIT OF THE COMPANY
THAT (A) SUCH SENIOR NOTES MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (I) TO THE COMPANY, (II) TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
21
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (III) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF
RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SENIOR NOTE FOR ITS
OWN ACCOUNT, OR FOR THE ACCOUNT OF AN "ACCREDITED INVESTOR" WITHIN THE
MEANING OF SUBPARAGRAPH (a) (1), (2), (3) OR (7) OF RULE 501 UNDER THE
SECURITIES ACT, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, (IV) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OR (V) PURSUANT TO AN EXEMPTION FROM THE SECURITIES ACT,
IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND, IN THE CASE
OF (III) or (V), SUBJECT TO THE RIGHT OF THE COMPANY TO REQUIRE AN OPINION
OF COUNSEL ADDRESSING COMPLIANCE WITH THE U.S. SECURITIES LAWS, AND (B) THE
HOLDER WILL NOTIFY ANY PURCHASER OF ANY SENIOR NOTES FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE SENIOR NOTES WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS
HAVING AN AGGREGATE PRINCIPAL AMOUNT OF NOT LESS THAN $100,000. TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY ATTEMPTED TRANSFER OF SENIOR NOTES, OR
ANY INTEREST THEREIN, IN A BLOCK HAVING AN AGGREGATE PRINCIPAL AMOUNT OF
LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS THEREOF SHALL BE
DEEMED TO BE VOID AND OF NO LEGAL EFFECT WHATSOEVER. TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE
THE HOLDER OF SUCH SENIOR NOTES FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED
TO, THE RECEIPT OF PRINCIPAL OF OR INTEREST ON SUCH SENIOR NOTES, OR ANY
INTEREST THEREIN, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO HAVE NO
INTEREST WHATSOEVER IN SUCH SENIOR NOTES.
THE HOLDER OF THIS SENIOR NOTE, OR ANY INTEREST THEREIN, BY ITS ACCEPTANCE
HEREOF OR THEREOF ALSO AGREES, REPRESENTS AND WARRANTS THAT IT IS NOT AN
EMPLOYEE BENEFIT PLAN, INDIVIDUAL RETIREMENT ACCOUNT OR OTHER PLAN OR
ARRANGEMENT SUBJECT TO TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED ("ERISA"), OR SECTION 4975 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED (THE "CODE") (EACH A "PLAN"), OR AN ENTITY WHOSE
UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY PLAN'S INVESTMENT
IN THE ENTITY, AND NO PERSON INVESTING "PLAN ASSETS" OF ANY PLAN MAY
ACQUIRE OR HOLD THIS SENIOR NOTE OR ANY INTEREST THEREIN, UNLESS SUCH
PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE UNDER
U.S.
22
DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23, 95-60,
91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND
HOLDING OF THIS SENIOR NOTE, OR ANY INTEREST THEREIN, ARE NOT PROHIBITED BY
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE WITH RESPECT TO SUCH
PURCHASE AND HOLDING. ANY PURCHASER OR HOLDER OF THE SENIOR NOTES OR ANY
INTEREST THEREIN WILL BE DEEMED TO HAVE REPRESENTED BY ITS PURCHASE AND
HOLDING THEREOF THAT EITHER (i) IT IS NOT AN EMPLOYEE BENEFIT PLAN OR OTHER
PLAN TO WHICH TITLE I OF ERISA OR SECTION 4975 OF THE CODE IS APPLICABLE, A
TRUSTEE OR OTHER PERSON ACTING ON BEHALF OF ANY SUCH EMPLOYEE BENEFIT PLAN
OR PLAN, OR ANY OTHER PERSON OR ENTITY USING THE "PLAN ASSETS" OF ANY SUCH
EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE, OR (ii) SUCH
PURCHASE OR HOLDING WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER
SECTION 406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH FULL EXEMPTIVE
RELIEF IS NOT AVAILABLE UNDER AN APPLICABLE STATUTORY OR ADMINISTRATIVE
EXEMPTION.
(b) The above legends shall not be removed from any Senior Note unless
there is delivered to the Company satisfactory evidence, which may include an
Opinion of Counsel, as may be reasonably required to ensure that any future
transfers thereof may be made without restriction under or violation of the
provisions of the Securities Act and other applicable law. Upon provision of
such satisfactory evidence, the Company shall execute and deliver to the
Trustee, and the Trustee shall deliver, at the written direction of the Company,
a Senior Note that does not bear the legend.
SECTION 2.3. Form of Trustee's Certificate of Authentication.
The Trustee's certificates of authentication shall be in substantially the
following form:
This represents Senior Notes referred to in the within-mentioned Indenture.
Dated:
------------------------------
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Trustee
By:
------------------------------------
Authorized officer
SECTION 2.4. Temporary Senior Notes.
(a) Pending the preparation of definitive Senior Notes, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Senior Notes that are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any
23
denomination, substantially of the tenor of the definitive Senior Notes in lieu
of which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Senior Notes
may determine, as evidenced by their execution of such Senior Notes.
(b) If temporary Senior Notes are issued, the Company will cause definitive
Senior Notes to be prepared without unreasonable delay. After the preparation of
definitive Senior Notes, the temporary Senior Notes shall be exchangeable for
definitive Senior Notes upon surrender of the temporary Senior Notes at the
office or agency of the Company designated for that purpose without charge to
the Holder. Upon surrender for cancellation of any one or more temporary Senior
Notes, the Company shall execute and the Trustee shall authenticate and deliver
in exchange therefor one or more definitive Senior Notes of any authorized
denominations having the same Original Issue Date and Stated Maturity and having
the same terms as such temporary Senior Notes. Until so exchanged, the temporary
Senior Notes shall in all respects be entitled to the same benefits under this
Indenture as definitive Senior Notes.
SECTION 2.5. Definitive Senior Notes.
The Senior Notes issued on the Original Issue Date shall be issued as
directed by the Purchasers on or prior to the Closing Date, either (i) in the
form of one or more Global Senior Notes or (ii) in the form of one or more
Definitive Senior Notes Certificates. Global Senior Notes shall be, except as
provided in Section 3.4, Book-Entry Senior Notes issued in the form of one or
more Global Senior Notes registered in the name of the Depositary, or its
nominee and deposited with the Depositary or the Trustee as custodian for the
Depositary for credit by the Depositary to the respective accounts of the
Depositary Participants thereof (or such other accounts as they may direct). The
Senior Notes issued to a Person other than a Purchaser that is not a QIB shall
be issued in the form of Definitive Senior Notes Certificates. The definitive
Senior Notes shall be printed, lithographed or engraved, or produced by any
combination of these methods, if required by any securities exchange on which
the Senior Notes may be listed, on a steel engraved border or steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Senior Notes may be listed, all as determined
by the officers executing such Senior Notes, as evidenced by their execution of
such Senior Notes.
ARTICLE III
The Senior Notes
SECTION 3.1. Payment of Principal and Interest.
(a) The unpaid principal amount of the Senior Notes shall bear interest at
a fixed rate per annum equal to 7.871% through the Interest Payment Date in
July, 2011, and a variable rate per annum, reset quarterly, equal to LIBOR plus
2.30% thereafter, such interest to accrue from and including the Original Issue
Date or from and including the most recent Interest Payment Date to which
interest has been paid or duly provided for, and any overdue principal, premium,
if any, or any overdue installment of interest shall bear Additional Interest
(to the extent payment
24
of such interest would be legally enforceable) at a fixed rate per annum equal
to 7.871% through the Interest Payment Date in July, 2011, and a variable rate
per annum, reset quarterly, equal to LIBOR plus 2.30% thereafter, from the dates
such amounts are due to but excluding the dates such amounts are paid or funds
for the payment thereof are made available for payment.
(b) Interest and Additional Interest on any Senior Note 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 Senior Note (or one or more Predecessor
Senior Notes) is registered at the close of business on the Regular Record Date
for such interest, except that interest and any Additional Interest payable on
the Stated Maturity (or any date of principal repayment upon early maturity) of
the principal of a Senior Note or on a Redemption Date shall be paid to the
Person to whom principal is paid. The initial payment of interest on any Senior
Note that is issued between a Regular Record Date and the related Interest
Payment Date shall be payable as provided in such Senior Note.
(c) Any interest on any Senior Note that is due and payable, but is not
timely paid or duly provided for, on any Interest Payment Date for Senior Notes
(herein called "Defaulted Interest") shall forthwith cease to be payable to the
registered Holder on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in paragraph (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Senior Notes (or their respective
Predecessor Senior Notes) are registered at the close of business on a
special record date for the payment of such Defaulted Interest (a "Special
Record Date"), which shall be fixed in the following manner. At least
thirty (30) days prior to the date of the proposed payment, the Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Senior Note and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of
the Persons entitled to such Defaulted Interest. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest,
which shall be not more than fifteen (15) days and not less than ten (10)
days prior to the date of the proposed payment and not less than ten (10)
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first class, postage prepaid, to each
Holder of a Senior Note at the address of such Holder as it appears in the
Securities Register not less than ten (10) days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted Interest and
the Special Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Senior Notes (or
their respective Predecessor Senior Notes) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following paragraph (ii); or
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(ii) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Senior Notes
may be listed, traded or quoted and, upon such notice as may be required by
such exchange or automated quotation system (or by the Trustee if the
Senior Notes are not listed), if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this paragraph, such payment
shall be deemed practicable by the Trustee.
(d) Payments of interest on the Senior Notes shall include interest accrued
to but excluding the respective Interest Payment Dates. The amount of interest
payable for any interest period shall be computed and paid on the basis of a
360-day year and the actual number of days elapsed in the relevant interest
period.
(e) Payment of principal of, premium, if any, and interest on the Senior
Notes shall be made 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.
Payments of principal, premium, if any, and interest due at the Maturity of such
Senior Notes shall be made at the Place of Payment upon surrender of such Senior
Notes to the Paying Agent and payments of interest shall be made subject to such
surrender where applicable, by wire transfer at such place and to such account
at a banking institution in the United States as may be designated in writing to
the Paying Agent at least ten (10) Business Days prior to the date for payment
by the Person entitled thereto unless proper written transfer instructions have
not been received by the relevant record date, in which case such payments shall
be made by check mailed to the address of such Person as such address shall
appear in the Security Register. Notwithstanding the foregoing, so long as the
holder of the Senior Note is the Trustee, the payment of the principal of (and
premium if any) and interest (including any overdue installment of interest) on
the Senior Note will be made at such place and to such account as may be
designated by the Trustee.
(f) The parties hereto acknowledge and agree that the holders of the Senior
Notes have certain rights to direct the Company to modify the Interest Payment
Dates and corresponding Stated Maturity of the Senior Notes or a portion of the
Senior Notes pursuant to the Placement Agreement. In the event any such
modifications are made to the Senior Notes or a portion of the Senior Notes,
appropriate changes to the form of Senior Note set forth in Article II hereof
shall be made prior to the issuance and authentication of new or replacement
Senior Notes. Any such modification of the Interest Payment Dates and
corresponding Stated Maturity with respect to any Senior Notes or tranche of
Senior Notes shall not require or be subject to the consent of the Trustee.
(g) Subject to the foregoing provisions of this Section 3.1, each Senior
Note delivered under this Indenture upon transfer of or in exchange for or in
lieu of any other Senior Note shall carry the rights to interest accrued and
unpaid, and to accrue, that were carried by such other Senior Note.
(h) The Senior Notes will rank pari passu with each other and the Company's
other senior unsecured obligations from time to time outstanding.
26
SECTION 3.2. Denominations.
The Senior Notes shall be in registered form without coupons and shall be
issuable in minimum denominations of $100,000 and any integral multiple of
$1,000 in excess thereof.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
(a) At any time and from time to time after the execution and delivery of
this Indenture until the Interest Payment Date in October, 2006, provided that
no Event of Default has occurred and is continuing, the Company may deliver
Senior Notes in an aggregate principal amount (including all then Outstanding
Senior Notes) not in excess of $100,000,000 executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Senior Notes, and the Trustee in accordance with the
Company Order shall authenticate and deliver such Senior Notes. In
authenticating such Senior Notes, and accepting the additional responsibilities
under this Indenture in relation to such Senior Notes, the Trustee shall be
entitled to receive, and shall be fully protected in relying upon:
(i) a copy of any Board Resolution relating thereto; and
(ii) an Opinion of Counsel stating that (1) such Senior Notes, when
authenticated and delivered by the Trustee and issued by the Company in the
manner and subject to any conditions specified in such Opinion of Counsel,
will constitute valid and legally binding obligations of the Company,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; (2) the
Senior Notes have been duly authorized and executed by the Company and have
been delivered to the Trustee for authentication in accordance with this
Indenture; and (3) the Senior Notes are not required to be registered under
the Securities Act.
(b) The Senior Notes shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its Chief Executive
Officer, its President or one of its Vice Presidents. The signature of any of
these officers on the Senior Notes may be manual or facsimile. Senior Notes
bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Senior Notes or did not hold such offices at
the date of such Senior Notes.
(c) No Senior Note shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose, unless there appears on such Senior Note
a certificate of authentication substantially in the form provided for herein
executed by the Trustee by the manual signature of one of its authorized
officers, and such certificate upon any Senior Note shall be conclusive
evidence, and the only evidence, that such Senior Note has been duly
authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Senior Note shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Senior Note
to the Trustee for cancellation as provided in Section 3.8, for all purposes of
this Indenture such Senior Note shall be deemed never to have
27
been authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
(d) Each Senior Note shall be dated the date of its authentication.
SECTION 3.4. Global Senior Notes.
(a) Notwithstanding any other provision in this Indenture, no Global Senior
Note may be exchanged in whole or in part for registered Senior Notes, and no
transfer of a Global Senior Note in whole or in part may be registered, in the
name of any Person other than the Depositary for such Global Senior Note or a
nominee thereof unless (i) such Depositary advises the Trustee and the Company
in writing that such Depositary is no longer willing or able to properly
discharge its responsibilities as Depositary with respect to such Global Senior
Note, and no qualified successor is appointed by the Company within ninety (90)
days of receipt by the Company of such notice, (ii) such Depositary ceases to be
a clearing agency registered under the Exchange Act and no successor is
appointed by the Company within ninety (90) days after obtaining knowledge of
such event, (iii) the Company executes and delivers to the Trustee a Company
Order stating that the Company elects to terminate the book-entry system through
the Depositary or (iv) an Event of Default shall have occurred and be
continuing. Upon the occurrence of any event specified in clause (i), (ii),
(iii) or (iv) above, the Trustee shall notify the Depositary and instruct the
Depositary to notify all owners of beneficial interests in such Global Senior
Note of the occurrence of such event and of the availability of Senior Notes to
such owners of beneficial interests requesting the same. Upon the issuance of
such Senior Notes and the registration in the Securities Register of such Senior
Notes in the names of the Holders of the beneficial interests therein, the
Trustee shall recognize such holders of beneficial interests as Holders.
Notwithstanding the foregoing, if an owner of a beneficial interest in a Global
Senior Note wishes at any time to transfer an interest in such Global Senior
Note to a Person other than a QIB, such transfer shall be effected, subject to
the Applicable Depositary Procedures, in accordance with the provisions of this
Section 3.4 and Section 3.5, and the transferee shall receive a Definitive
Senior Note Certificate in connection with such transfer. A holder of a
Definitive Senior Note Certificate that is a QIB may, upon request, and in
accordance with the provisions of this Section 3.4 and Section 3.5, exchange
such Definitive Senior Note Certificate for a beneficial interest in a Global
Senior Note.
(b) If any Global Senior Note is to be exchanged for other Senior Notes or
canceled in part, or if another Senior Note is to be exchanged in whole or in
part for a beneficial interest in any Global Senior Note, then either (i) such
Global Senior Note shall be so surrendered for exchange or cancellation as
provided in this Article III or (ii) the principal amount thereof shall be
reduced or increased by an amount equal to the portion thereof to be so
exchanged or canceled, or equal to the principal amount of such other Senior
Note to be so exchanged for a beneficial interest therein, as the case may be,
by means of an appropriate adjustment made on the records of the Securities
Registrar, whereupon the Trustee, in accordance with the Applicable Depositary
Procedures, shall instruct the Depositary or its authorized representative to
make a corresponding adjustment to its records. Upon any such surrender or
adjustment of a Global Senior Note by the Depositary, accompanied by
registration instructions, the Company shall execute and the Trustee shall
authenticate and deliver any Senior Notes issuable in exchange for
28
such Global Senior Note (or any portion thereof) in accordance with the
instructions of the Depositary. The Trustee shall not be liable for any delay in
delivery of such instructions and may conclusively rely on, and shall be fully
protected in relying on, such instructions.
(c) Every Senior Note executed, authenticated and delivered upon
registration or transfer of, or in exchange for or in lieu of, a Global Senior
Note or any portion thereof shall be executed, authenticated and delivered in
the form of, and shall be, a Global Senior Note, unless such Senior Note is
registered in the name of a Person other than the Depositary for such Global
Senior Note or a nominee thereof.
(d) The Depositary or its nominee, as the registered owner of a Global
Senior Note, shall be the Holder of such Global Senior Note for all purposes
under this Indenture and the Senior Notes, and owners of beneficial interests in
a Global Senior Note shall hold such interests pursuant to the Applicable
Depositary Procedures. Accordingly, any such owner's beneficial interest in a
Global Senior Note shall be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Depositary or its
nominee or its Depositary Participants. The Securities Registrar and the Trustee
shall be entitled to deal with the Depositary for all purposes of this Indenture
relating to a Global Senior Note (including the payment of principal and
interest thereon and the giving of instructions or directions by owners of
beneficial interests therein and the giving of notices) as the sole Holder of
the Senior Note and shall have no obligations to the owners of beneficial
interests therein. Neither the Trustee nor the Securities Registrar shall have
any liability in respect of any transfers effected by the Depositary.
(e) The rights of owners of beneficial interests in a Global Senior Note
shall be exercised only through the Depositary and shall be limited to those
established by law, the Applicable Depositary Procedures and agreements between
such owners and the Depositary and/or its Depositary Participants; provided,
that, solely for the purpose of determining whether the Holders of the requisite
amount of Senior Notes have voted on any matter provided for in this Indenture,
to the extent that Senior Notes are represented by a Global Senior Note, the
Trustee may conclusively rely on, and shall be fully protected in relying on,
any written instrument (including a proxy) delivered to the Trustee by the
Depositary setting forth the owners' votes or assigning the right to vote on any
matter to any other Persons either in whole or in part. To the extent that
Senior Notes are represented by a Global Senior Note, the initial Depositary
will make book-entry transfers among the Depositary Participants and receive and
transmit payments on the Senior Notes that are represented by a Global Senior
Note to such Depositary Participants, and none of the Depositor or the Trustee
shall have any responsibility or obligation with respect thereto.
(f) To the extent that a notice or other communication to the Holders is
required under this Indenture, for so long as Senior Notes are represented by a
Global Senior Note, the Trustee shall give all such notices and communications
to the Depositary, and shall have no obligations to the owners of beneficial
interests in a Global Senior Note.
(g) No holder of any beneficial interest in any Global Senior Note held on
its behalf by a Depositary shall have any rights under this Indenture with
respect to such Global Senior
29
Note, and such Depositary may be treated by the Company, the Guarantor, the
Trustee and any agent of the Company, the Guarantor or the Trustee as the owner
of such Global Senior Note for all purposes whatsoever. None of the Company, the
Guarantor, the Trustee nor any agent of the Company, the Guarantor or the
Trustee will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests of a
Global Senior Note or maintaining, supervising or reviewing any records relating
to such beneficial ownership interests. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Guarantor, the Trustee or any agent of the
Company, the Guarantor or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by a Depositary or impair,
as between a Depositary and such holders of beneficial interests, the operation
of customary practices governing the exercise of the rights of the Depositary
(or its nominee) as Holder of any Senior Note.
SECTION 3.5. Registration, Transfer and Exchange Generally.
(a) The Trustee shall cause to be kept at the Corporate Trust Office a
register (the "Securities Register") in which the registrar and transfer agent
with respect to the Senior Notes (the "Securities Registrar"), subject to such
reasonable regulations as it may prescribe, shall provide for the registration
of Senior Notes and of transfers and exchanges of Senior Notes. The Trustee
shall at all times also be the Securities Registrar. The provisions of Article
VI shall apply to the Trustee in its role as Securities Registrar.
(b) Subject to compliance with Section 2.2(b), upon surrender for
registration of transfer of any Senior Note at the offices or agencies of the
Company designated for that purpose the Company shall execute by manual or
facsimile signature, and the Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Senior Notes of any
authorized denominations of like tenor and aggregate principal amount.
(c) At the option of the Holder, Senior Notes may be exchanged for other
Senior Notes of any authorized denominations, of like tenor and aggregate
principal amount, upon surrender of the Senior Notes to be exchanged at such
office or agency. Whenever any Senior Notes are so surrendered for exchange, the
Company shall execute by manual or facsimile signature, and upon receipt thereof
the Trustee shall authenticate and deliver, the Senior Notes that the Holder
making the exchange is entitled to receive.
(d) All Senior Notes issued upon any transfer or exchange of Senior Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Senior Notes
surrendered upon such transfer or exchange.
(e) Every Senior Note presented or surrendered for transfer or exchange
shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Securities Registrar, duly executed by the Holder thereof or
such Holder's attorney duly authorized in writing and (i) if such Senior Note
Certificate is being transferred otherwise than to a QIB, accompanied by a
certificate of the transferee substantially in the form set forth as Exhibit C
hereto or (ii) if such
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Senior Note Certificate is being transferred to a QIB, accompanied by a
certificate of the transferor substantially in the form set forth as Exhibit D
hereto.
(f) No service charge shall be made to a Holder for any transfer or
exchange of Senior Notes, 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 transfer or exchange of Senior Notes.
(g) The Company shall designate an office or offices or agency or agencies
where Senior Notes may be surrendered for registration or transfer or exchange.
The Company initially designates the Corporate Trust Office as its office and
agency for such purposes. The Company shall give prompt written notice to the
Trustee and to the Holders of any change in the location of any such office or
agency.
(h) Neither the Company nor the Trustee shall be required to issue,
register the transfer of or exchange any Senior Note during a period beginning
at the opening of business fifteen (15) days before any selection of Senior
Notes to be redeemed pursuant to Article XI and ending at the close of business
on the day of mailing of the relevant notice of redemption or (ii) to register
the transfer of or exchange any Senior Note so selected for redemption in whole
or in part, except, in the case of any such Senior Note to be redeemed in part,
any portion thereof not to be redeemed.
(i) Each Holder of a Senior Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Senior Note in violation of provisions of this
Indenture or applicable United States or state securities law.
SECTION 3.6. Mutilated, Destroyed, Lost and Stolen Senior Notes.
(a) If any mutilated Senior Note is surrendered to the Trustee or the
Company together with such security or indemnity as may be required by the
Company or the Trustee to save each of them or any agent of either of them
harmless, the Company shall execute and upon receipt thereof the Trustee shall
authenticate and deliver in exchange therefor a new Senior Note of like tenor
and aggregate principal amount and bearing a number not contemporaneously
outstanding.
(b) If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Senior
Note and (ii) such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Company or the Trustee
that such Senior Note has been acquired by a bona fide purchaser, the Company
shall execute and upon its written request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Senior Note, a new Senior
Note of like tenor and aggregate principal amount as such destroyed, lost or
stolen Senior Note, and bearing a number not contemporaneously outstanding.
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(c) If any such mutilated, destroyed, lost or stolen Senior Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Senior Note, pay such Senior Note.
(d) Upon the issuance of any new Senior Note under this Section 3.6, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
(e) Every new Senior Note issued pursuant to this Section 3.6 in lieu of
any mutilated, destroyed, lost or stolen Senior Note shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Senior Note shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Senior Notes duly
issued hereunder.
(f) The provisions of this Section 3.6 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Senior Notes.
SECTION 3.7. Persons Deemed Owners.
The Company, the Guarantor, the Trustee and any agent of the Company, the
Guarantor or the Trustee shall treat the Person in whose name any Senior Note is
registered as the owner of such Senior Note for the purpose of receiving payment
of principal of and any interest on such Senior Note and for all other purposes
whatsoever, and neither the Company, the Guarantor, the Trustee nor any agent of
the Company, the Guarantor or the Trustee shall be affected by notice to the
contrary. All such payments so made to any such Person, or upon such Person's
order, shall be valid, and, to the extent of the sum or sums paid, effectual to
satisfy and discharge the liability for money payable upon any such Senior Note.
SECTION 3.8. Cancellation.
All Senior Notes surrendered for payment, redemption, transfer or exchange
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee, and any such Senior Notes and Senior Notes surrendered directly to the
Trustee for any such purpose shall be promptly canceled by it. The Company may
at any time deliver to the Trustee for cancellation any Senior Notes previously
authenticated and delivered hereunder that the Company may have acquired in any
manner whatsoever, and all Senior Notes so delivered shall be promptly canceled
by the Trustee. No Senior Notes shall be authenticated in lieu of or in exchange
for any Senior Notes canceled as provided in this Section 3.8, except as
expressly permitted by this Indenture. All canceled Senior Notes shall be
disposed of by the Trustee in accordance with its customary practices and the
Trustee shall deliver to the Company a certificate of such disposition.
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SECTION 3.9. RESERVED.
SECTION 3.10. RESERVED.
SECTION 3.11. Agreed Tax Treatment.
Each Senior Note issued hereunder shall provide that the Company and, by
its acceptance or acquisition of a Senior Note or a beneficial interest therein,
the Holder of, and any Person that acquires a direct or indirect beneficial
interest in, such Senior Note, intend and agree to treat such Senior Note as
indebtedness of the Company for United States Federal, state and local tax
purposes. The provisions of this Indenture shall be interpreted to further this
intention and agreement of the parties.
SECTION 3.12. CUSIP Numbers.
The Company in issuing the Senior Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption and other similar or related materials as a convenience to
Holders; provided, that any such notice or other materials may state that no
representation is made as to the correctness of such numbers either as printed
on the Senior Notes or as contained in any notice of redemption or other
materials and that reliance may be placed only on the other identification
numbers printed on the Senior Notes, and any such redemption shall not be
affected by any defect in or omission of such numbers.
In the event that the Company shall issue and the Trustee shall
authenticate any Additional Notes pursuant to this Indenture, the Company shall
use its best efforts to obtain the same CUSIP number for such Additional Notes
as is printed on the Senior Notes outstanding at such time; provided, however,
that if any Additional Notes are determined, pursuant to an Opinion of Counsel,
to be a different class of security than the Senior Notes outstanding at such
time for federal income tax purposes, the Company may obtain a CUSIP number for
such Additional Notes that is different from the CUSIP number printed on the
Senior Notes then outstanding.
ARTICLE IV
Satisfaction and Discharge
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall, upon Company Request, cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Senior Notes herein expressly provided for and as otherwise provided in this
Section 4.1) and the Trustee, on demand of and at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture, when
(a) either
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(i) all Senior Notes theretofore authenticated and delivered (other
than (A) Senior Notes that have been mutilated, destroyed, lost or stolen
and that have been replaced or paid as provided in Section 3.6 and (B)
Senior Notes for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid
to the Company or discharged from such trust as provided in Section 10.2)
have been delivered to the Trustee for cancellation; or
(ii) all such Senior Notes not theretofore delivered to the Trustee
for cancellation
(A) have become due and payable,
(B) will become due and payable at their Stated Maturity within
one year of the date of deposit, or
(C) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of subclause (ii)(A), (B) or (C) above, has
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose (x) an amount in the currency or currencies in which
the Senior Notes are payable, (y) Government Obligations which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than the due date of
any payment, money in an amount or (z) a combination thereof, in each case
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge the entire indebtedness on such Senior
Notes not theretofore delivered to the Trustee for cancellation, for
principal and any premium, if any, and interest (including any Additional
Interest) to the date of such deposit (in the case of Senior Notes that
have become due and payable) or to the Stated Maturity (or any date of
principal repayment upon early maturity) or Redemption Date, as the case
may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.6, the obligations of
the Company to any Authenticating Agent under Section 6.11 and, if money shall
have been deposited with the Trustee pursuant to subclause (a)(ii) of this
Section 4.1, the obligations of the Trustee under Section 4.2 and Section
10.2(e) shall survive such satisfaction and discharge.
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SECTION 4.2. Application of Trust Money.
Subject to the provisions of Section 10.2(e), all money deposited with the
Trustee pursuant to Section 4.1 shall be held in trust and applied by the
Trustee, in accordance with the provisions of the Senior Notes and this
Indenture, to the payment in accordance with Section 3.1, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Persons entitled thereto, of the principal
and any premium, if any, and interest (including any Additional Interest) for
the payment of which such money or obligations have been deposited with or
received by the Trustee.
ARTICLE V
Remedies
SECTION 5.1. Events of Default.
"Event of Default" means, wherever used herein with respect to the Senior
Notes, any one of the following events (whatever the reason for such Event of
Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest upon any Senior Note, including
any Additional Interest in respect thereof, when it becomes due and payable, and
continuance of such default for a period of thirty (30) days; or
(b) default in the payment of the principal of or any premium, if any, on
any Senior Note at its Maturity; or
(c) default in the performance, or breach, of any covenant or warranty of
the Company or the Guarantor in this Indenture and continuance of such default
or breach for a period of thirty (30) days after there has been given, by
registered or certified mail, to the Company and the Guarantor by the Trustee or
to the Company, the Guarantor and the Trustee by the Holders of at least twenty
five percent (25%) in aggregate principal amount of the Outstanding Senior Notes
a written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(d) the entry by a court having jurisdiction in the premises of a decree or
order adjudging the Company or the Guarantor a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company or the Guarantor under
any applicable Federal or state bankruptcy, insolvency, reorganization or other
similar law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or the Guarantor or of any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of sixty (60)
consecutive days; or
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(e) the institution by the Company or the Guarantor of proceedings to be
adjudicated a bankrupt or insolvent, or the consent by the Company or the
Guarantor to the institution of bankruptcy or insolvency proceedings against it,
or the filing by the Company or the Guarantor of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law, or the consent by
it to the filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or of any substantial part of its property or
the Guarantor or of any substantial part of its property, or the making by the
Company or the Guarantor of an assignment for the benefit of creditors, or the
admission by the Company or the Guarantor in writing of its inability to pay its
debts generally as they become due and its willingness to be adjudicated a
bankrupt or insolvent, or the taking of corporate action by the Company or the
Guarantor in furtherance of any such action; or
(f) the Guarantee shall cease to be in full force and effect or the
Guarantor shall, in writing to the Trustee or to a Holder or to any governmental
agency or regulatory authority, deny or disaffirm its obligations under the
Guarantee.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than twenty five percent (25%) in
principal amount of the Outstanding Senior Notes may declare the principal
amount of all the Senior Notes to be due and payable immediately, by a notice in
writing to the Company and the Guarantor (and to the Trustee if given by
Holders); and upon any such declaration the principal amount of and the accrued
interest (including any Additional Interest) on all the Senior Notes shall
become immediately due and payable; provided, however, that upon any such
declaration prior to July 30, 2011, there shall become immediately due and
payable, in addition to the principal amount of and the accrued interest
(including any Additional Interest) on all the Senior Notes, a premium equal to
three (3.0%) percent of the principal amount of the Senior Notes.
(b) At any time after such a declaration of acceleration with respect to
Senior Notes has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter provided in this
Article V, the Holders of a majority in principal amount of the Outstanding
Senior Notes, by written notice to the Company, the Guarantor and the Trustee,
may rescind and annul such declaration and its consequences if:
(i) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay:
(A) all overdue installments of interest on all Senior Notes,
(B) any accrued Additional Interest on all Senior Notes,
(C) the principal of and any premium, if any, on any Senior
Notes that have become due otherwise than by such
declaration of
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acceleration and interest (including any Additional
Interest) thereon at the rate borne by the Senior Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and
advances of the Trustee and its agents and counsel; and
(ii) all Events of Default with respect to Senior Notes, other than
the non-payment of the principal of Senior Notes that has become due solely
by such acceleration, have been cured or waived as provided in Section
5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
(a) Each of the Company and the Guarantor covenants that if:
(i) default is made in the payment of any installment of interest
(including any Additional Interest) on any Senior Note when such interest
becomes due and payable and such default continues for a period of thirty
(30) days, or
(ii) default is made in the payment of the principal of and any
premium on any Senior Note at the Maturity thereof,
the Company and the Guarantor will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of such Senior Notes, the whole amount
then due and payable on such Senior Notes for principal and any premium and
interest (including any Additional Interest) and, in addition thereto, all
amounts owing the Trustee under Section 6.6.
(b) If the Company or the Guarantor fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express
trust, may institute a judicial proceeding for the collection of the sums so due
and unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company, the Guarantor or any other obligor
upon such Senior Notes and collect the moneys adjudged or decreed to be payable
in the manner provided by law out of the property of the Company, the Guarantor
or any other obligor upon the Senior Notes, wherever situated.
(c) If an Event of Default with respect to Senior Notes occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Senior Notes by such appropriate
judicial proceedings as the Trustee shall deem most effectual to protect and
enforce any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
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SECTION 5.4. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or similar judicial
proceeding relative to the Company or the Guarantor (or any other obligor upon
the Senior Notes), its property or its creditors, the Trustee shall be entitled
and empowered, by intervention in such proceeding or otherwise, to take any and
all actions authorized hereunder in order to have claims of the Holders and the
Trustee allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to first pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts owing the
Trustee, any predecessor Trustee and other Persons under Section 6.6.
SECTION 5.5. Trustee May Enforce Claim Without Possession of Senior Notes.
All rights of action and claims under this Indenture or the Senior Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Senior Notes or the production thereof in any proceeding relating thereto,
and any such proceeding instituted by the Trustee shall be brought in its own
name as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of all the amounts owing the Trustee, any predecessor
Trustee and other Persons under Section 6.6, be for the ratable benefit of the
Holders of the Senior Notes in respect of which such judgment has been
recovered.
SECTION 5.6. Application of Money Collected.
Any money or property collected or to be applied by the Trustee with
respect to the Senior Notes pursuant to this Article V shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or property on account of principal or any premium or
interest (including any Additional Interest), upon presentation of the Senior
Notes and the notation thereon of the payment if only partially paid and upon
surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee, any predecessor
Trustee and other Persons under Section 6.6;
SECOND: To the payment of the amounts then due and unpaid upon the Senior
Notes for principal and any premium and interest (including any Additional
Interest) in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on the Senior Notes for principal and any premium and
interest (including any Additional Interest), respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
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SECTION 5.7. Limitation on Suits.
Subject to Section 5.8, no Holder of any Senior Notes shall have any right
to institute any proceeding, judicial or otherwise, with respect to this
Indenture or for the appointment of a custodian, receiver, assignee, trustee,
liquidator, sequestrator (or other similar official) or for any other remedy
hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default with respect to the Senior Notes;
(b) the Holders of not less than a majority in aggregate principal amount
of the Outstanding Senior Notes shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable indemnity
against the costs, expenses and liabilities to be incurred in compliance with
such request;
(d) the Trustee after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding for sixty (60) days; and
(e) no direction inconsistent with such written request has been given to
the Trustee during such sixty (60)-day period by the Holders of a majority in
aggregate principal amount of the Outstanding Senior Notes;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing itself of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other Holders of Senior Notes, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Senior Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium on such Senior Note at its
Maturity and payment of interest (including any Additional Interest) on such
Senior Note when due and payable (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such right shall not be impaired without the consent of such Holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
such Holder, then and in every such case the Company, the Guarantor, the Trustee
and such Holder shall, subject to any determination in such
39
proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and such Holder
shall continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided in Section 3.6(f), no right or remedy herein
conferred upon or reserved to the Trustee or the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and
remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or any Holder of any Senior Notes to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article V or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or the Holders, as the case may
be.
SECTION 5.12. Control by Holders.
The Holders of not less than a majority in aggregate principal amount of
the Outstanding Senior Notes shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee; provided, that:
(a) such direction shall not be in conflict with any rule of law or with
this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee that
is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.2, the Trustee shall have the
right to decline to follow such direction if a Responsible Officer or Officers
of the Trustee shall, in good faith, reasonably determine that the proceeding so
directed would be unjustly prejudicial to the Holders not joining in any such
direction or would involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
(a) The Holders of not less than a majority in aggregate principal amount
of the Outstanding Senior Notes may waive any past Event of Default hereunder
and its consequences except an Event of Default:
(i) in the payment of the principal of or any premium or interest
(including any Additional Interest) on any Senior Note (unless such Event
of Default has been cured
40
and the Company or the Guarantor has paid to or deposited with the Trustee
a sum sufficient to pay all installments of interest (including any
Additional Interest) due and past due and all principal of and any premium
on all Senior Notes due otherwise than by acceleration), or
(ii) in respect of a covenant or provision hereof that under Article
IX cannot be modified or amended without the consent of each Holder of any
Outstanding Senior Note.
(b) Any such waiver shall be deemed to be on behalf of the Holders of all
the Senior Notes.
(c) Upon any such waiver, such Event of Default shall cease to exist and
any Event of Default arising therefrom shall be deemed to have been cured for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Event of Default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Senior Note by
his or her acceptance thereof shall be deemed to have agreed, that any court may
in its discretion require, in any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken or omitted by it as Trustee, the filing by any party litigant in such suit
of an undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.14 shall not apply to any suit instituted by
the Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than ten percent (10%) in aggregate principal amount of
the Outstanding Senior Notes, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of or any premium on the Senior Note
after the Stated Maturity or any interest (including any Additional Interest) on
any Senior Note after it is due and payable (or, in the case of redemption, on
the Redemption Date).
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
Each of the Company and the Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any usury, stay or
extension law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and each of the
Company and the Guarantor (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Trustee, but will suffer and permit the execution of every such power as
though no such law had been enacted.
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ARTICLE VI
The Trustee
SECTION 6.1. Corporate Trustee Required.
There shall at all times be a Trustee hereunder with respect to the Senior
Notes. The Trustee shall be a corporation or national banking association
organized and doing business under the laws of the United States or of any state
thereof, authorized to exercise corporate trust powers, having a combined
capital and surplus of at least $50,000,000, subject to supervision or
examination by Federal or state authority and having an office within the United
States. If such entity publishes reports of condition at least annually,
pursuant to law or to the requirements of such supervising or examining
authority, then, for the purposes of this Section 6.1, the combined capital and
surplus of such entity shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 6.1, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article VI.
SECTION 6.2. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture; provided,
that in the case of any such certificates or opinions that by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or
not they substantially conform on their face to the requirements of this
Indenture.
(b) If an Event of Default known to the Trustee has occurred and is
continuing, the Trustee shall, prior to the receipt of directions, if any, from
the Holders of at least a majority in aggregate principal amount of the
Outstanding Senior Notes, exercise such of the rights and powers vested in it by
this Indenture, and use the same degree of care and skill in its exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(c) Notwithstanding the foregoing, no provision of this Indenture shall
require the Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it. Whether or not therein expressly
so
42
provided, every provision of this Indenture relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 6.2. To the extent that, at law or in equity, the
Trustee has duties and liabilities relating to the Holders, the Trustee shall
not be liable to any Holder for the Trustee's good faith reliance on the
provisions of this Indenture. The provisions of this Indenture, to the extent
that they restrict the duties and liabilities of the Trustee otherwise existing
at law or in equity, are agreed by the Company and the Holders to replace such
other duties and liabilities of the Trustee.
(d) No provisions of this Indenture shall be construed to relieve the
Trustee from liability with respect to matters that are within the authority of
the Trustee under this Indenture for its own negligent action, negligent failure
to act or willful misconduct, except that:
(i) the Trustee shall not be liable for any error or judgment made in
good faith by an authorized officer of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction
of the Holders of at least a majority in aggregate principal amount of the
Outstanding Senior Notes (or such other percentage as may be required by
the terms hereof), relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee under this Indenture;
and
(iii) the Trustee shall be under no liability for interest on any
money received by it hereunder and money held by the Trustee in trust
hereunder need not be segregated from other funds except to the extent
required by law.
SECTION 6.3. Notice of Defaults.
Within ninety (90) days after the occurrence of any default actually known
to the Trustee, the Trustee shall give the Holders notice of such default unless
such default shall have been cured or waived; provided, that except in the case
of a default in the payment of the principal of or any premium or interest on
any Senior Notes, the Trustee shall be fully protected in withholding the notice
if and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that withholding the notice is in the interest of Holders; and
provided, further, that in the case of any default of the character specified in
Section 5.1(c), no such notice to Holders shall be given until at least thirty
(30) days after the occurrence thereof. For the purpose of this Section 6.3, the
term "default" means any event which is, or after notice or lapse of time or
both would become, an Event of Default.
SECTION 6.4. Certain Rights of Trustee.
Subject to the provisions of Section 6.2:
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(a) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting in good faith and in accordance with the terms
hereof upon any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note or other paper
or document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) if (i) in performing its duties under this Indenture the Trustee is
required to decide between alternative courses of action, (ii) in construing any
of the provisions of this Indenture the Trustee finds ambiguous or inconsistent
with any other provisions contained herein or (iii) the Trustee is unsure of the
application of any provision of this Indenture, then, except as to any matter as
to which the Holders are entitled to decide under the terms of this Indenture,
the Trustee shall deliver a notice to the Company requesting the Company's
written instruction as to the course of action to be taken and the Trustee shall
take such action, or refrain from taking such action, as the Trustee shall be
instructed in writing to take, or to refrain from taking, by the Company;
provided, that if the Trustee does not receive such instructions from the
Company within ten (10) Business Days after it has delivered such notice or such
reasonably shorter period of time set forth in such notice the Trustee may, but
shall be under no duty to, take such action, or refrain from taking such action,
as the Trustee shall deem advisable and in the best interests of the Holders, in
which event the Trustee shall have no liability except for its own negligence,
bad faith or willful misconduct;
(c) any request or direction of the Company shall be sufficiently evidenced
by a Company Request or Company Order and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(d) the Trustee may consult with counsel (which counsel may be counsel to
the Trustee, the Company, the Guarantor or any of their Affiliates, and may
include any of its employees) and the advice of such counsel or any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses (including reasonable attorneys' fees and expenses) and
liabilities that might be incurred by it in compliance with such request or
direction, including reasonable advances as may be requested by the Trustee;
(f) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, indenture,
note or other paper or document, but the Trustee in its discretion may make such
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company and the
Guarantor, personally or by agent or attorney;
44
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, attorneys,
custodians or nominees and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney, custodian or
nominee appointed with due care by it hereunder;
(h) whenever in the administration of this Indenture the Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action with respect to enforcing any remedy or right
hereunder, the Trustee (i) may request instructions from the Holders (which
instructions may only be given by the Holders of the same aggregate principal
amount of Outstanding Senior Notes as would be entitled to direct the Trustee
under this Indenture in respect of such remedy, right or action), (ii) may
refrain from enforcing such remedy or right or taking such action until such
instructions are received and (iii) shall be protected in acting in accordance
with such instructions;
(i) except as otherwise expressly provided by this Indenture, the Trustee
shall not be under any obligation to take any action that is discretionary under
the provisions of this Indenture;
(j) without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services in
connection with any bankruptcy, insolvency or other proceeding referred to in
clauses (d) or (e) of the definition of Event of Default, such expenses
(including legal fees and expenses of its agents and counsel) and the
compensation for such services are intended to constitute expenses of
administration under any bankruptcy laws or law relating to creditors rights
generally;
(k) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate addressing such matter, which,
upon receipt of such request, shall be promptly delivered by the Company or the
Guarantor;
(l) the Trustee shall not be charged with knowledge of any default or Event
of Default unless either (i) a Responsible Officer of the Trustee shall have
actual knowledge or (ii) the Trustee shall have received written notice thereof
from the Company, the Guarantor or a Holder; and
(m) in the event that the Trustee is also acting as Paying Agent,
Authenticating Agent or Securities Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Article VI shall also be
afforded such Paying Agent, Authenticating Agent, or Securities Registrar.
SECTION 6.5. May Hold Senior Notes.
The Trustee, any Authenticating Agent, any Paying Agent, any Securities
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner
45
or pledgee of Senior Notes and may otherwise deal with the Company and the
Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Securities Registrar or such other agent.
SECTION 6.6. Compensation; Reimbursement; Indemnity.
(a) The Company agrees
(i) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder in such amounts as the Company
and the Trustee shall agree from time to time (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(ii) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence, bad faith or willful misconduct; and
(iii) to the fullest extent permitted by applicable law, to indemnify
the Trustee (including in its individual capacity) and its Affiliates, and
their officers, directors, shareholders, agents, representatives and
employees for, and to hold them harmless against, any loss, damage,
liability, tax (other than income, franchise or other taxes imposed on
amounts paid pursuant to (i) or (ii) hereof), penalty, expense or claim of
any kind or nature whatsoever incurred without negligence, bad faith or
willful misconduct on its part arising out of or in connection with the
acceptance or administration of this trust or the performance of the
Trustee's duties hereunder, including the advancement of funds to cover the
costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
(b) To secure the Company's payment obligations in this Section 6.6, the
Company hereby grants and pledges to the Trustee and the Trustee shall have a
lien prior to the Senior Notes on all money or property held or collected by the
Trustee, other than money or property held in trust to pay principal and
interest on particular Senior Notes. Such lien shall survive the satisfaction
and discharge of this Indenture or the resignation or removal of the Trustee.
(c) The obligations of the Company and the Guarantor under this Section 6.6
shall survive the satisfaction and discharge of this Indenture and the earlier
resignation or removal of the Trustee.
(d) In no event shall the Trustee be liable for any indirect, special,
punitive or consequential loss or damage of any kind whatsoever, including, but
not limited to, lost profits, even if the Trustee has been advised of the
likelihood of such loss or damage and regardless of the form of action.
46
(e) In no event shall the Trustee be liable for any failure or delay in the
performance of its obligations hereunder because of circumstances beyond its
control, including, but not limited to, acts of God, flood, war (whether
declared or undeclared), terrorism, fire, riot, embargo, government action,
including any laws, ordinances, regulations, governmental action or the like
which delay, restrict or prohibit the providing of the services contemplated by
this Indenture.
SECTION 6.7. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article VI shall become effective until the
acceptance of appointment by the successor Trustee under Section 6.8.
(b) The Trustee may resign at any time by giving written notice thereof to
the Company.
(c) Unless an Event of Default shall have occurred and be continuing, the
Trustee may be removed at any time by the Company by a Board Resolution. If an
Event of Default shall have occurred and be continuing, the Trustee may be
removed by Act of the Holders of a majority in aggregate principal amount of the
Outstanding Senior Notes, delivered to the Trustee and to the Company and to the
Guarantor.
(d) If the Trustee shall resign, be removed or become incapable of acting,
or if a vacancy shall occur in the office of Trustee for any reason, at a time
when no Event of Default shall have occurred and be continuing, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee, and such
successor Trustee and the retiring Trustee shall comply with the applicable
requirements of Section 6.8. If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any reason, at a time when an Event of Default shall have occurred and be
continuing, the Holders, by Act of the Holders of a majority in aggregate
principal amount of the Outstanding Senior Notes, shall promptly appoint a
successor Trustee, and such successor Trustee and the retiring Trustee shall
comply with the applicable requirements of Section 6.8. If no successor Trustee
shall have been so appointed by the Company or the Holders and accepted
appointment within sixty (60) days after the giving of a notice of resignation
by the Trustee or the removal of the Trustee in the manner required by Section
6.8, any Holder who has been a bona fide Holder of a Senior Note for at least
six months may, on behalf of such Holder and all others similarly situated, and
any resigning Trustee may, at the expense of the Company, petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(e) The Company shall give notice to all Holders in the manner provided in
Section 1.6 of each resignation and each removal of the Trustee and each
appointment of a successor Trustee. Each notice shall include the name of the
successor Trustee and the address of its Corporate Trust Office.
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SECTION 6.8. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee, each
successor Trustee so appointed shall execute, acknowledge and deliver to the
Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirming
to such successor Trustee all rights, powers and trusts referred to in paragraph
(a) of this Section 6.8.
(c) No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article VI.
SECTION 6.9. Merger, Conversion, Consolidation or Succession to Business.
Any Person into which the Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
all or substantially all of the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, provided,
that such Person shall be otherwise qualified and eligible under this Article
VI. In case any Senior Notes shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or
consolidation or as otherwise provided above in this Section 6.9 to such
authenticating Trustee may adopt such authentication and deliver the Senior
Notes so authenticated, and in case any Senior Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Senior Notes
either in the name of any predecessor Trustee or in the name of such successor
Trustee, and in all cases the certificate of authentication shall have the full
force which it is provided anywhere in the Senior Notes or in this Indenture
that the certificate of the Trustee shall have.
SECTION 6.10. Not Responsible for Recitals or Issuance of Senior Notes.
The recitals contained herein and in the Senior Notes, except the Trustee's
certificates of authentication, shall be taken as the statements of the Company
or the Guarantor, and neither the Trustee nor any Authenticating Agent assumes
any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Senior Notes.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of the Senior Notes or the proceeds thereof.
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SECTION 6.11. Appointment of Authenticating Agent.
(a) The Trustee may appoint an Authenticating Agent or Agents with respect
to the Senior Notes, which shall be authorized to act on behalf of the Trustee
to authenticate Senior Notes issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
3.6, and Senior Notes so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Any such appointment shall be evidenced by an
instrument in writing signed by a Responsible Officer of the Trustee, a copy of
which instrument shall be promptly furnished to the Company. Wherever reference
is made in this Indenture to the authentication and delivery of Senior Notes by
the Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be an entity organized and doing business and in
good standing under the laws of the United States of America, or of any State or
Territory thereof or the District of Columbia, authorized under such laws to act
as Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or state
authority. If such Authenticating Agent publishes reports of condition at least
annually pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section 6.11 the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If
at any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section 6.11, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.11.
(b) Any Person into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which such Authenticating Agent shall be
a party, or any Person succeeding to all or substantially all of the corporate
trust business of an Authenticating Agent shall be the successor Authenticating
Agent hereunder, provided such Person shall be otherwise eligible under this
Section 6.11, without the execution or filing of any paper or any further act on
the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee, the Company and the Guarantor. The Trustee may at any
time terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent, the Company and the Guarantor. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 6.11, the Trustee may appoint a successor
Authenticating Agent eligible under the provisions of this Section 6.11, which
shall be acceptable to the Company, and shall give notice of such appointment to
all Holders in the manner provided in Section 1.6. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent.
49
(d) The Company or the Guarantor agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this Section
6.11 in such amounts as the Company and the Authenticating Agent shall agree
from time to time.
(e) If an appointment of an Authenticating Agent is made pursuant to this
Section 6.11, the Senior Notes may have endorsed thereon an alternative
certificate of authentication in the following form:
This represents Senior Notes designated therein and referred to in the within
mentioned Indenture.
WILMINGTON TRUST COMPANY, not in its
individual capacity, but solely as
Trustee
----------------------------------------
Authenticating Agent
Dated: By:
------------------------------ ------------------------------------
Authorized Officer
ARTICLE VII
Holder's Lists and Reports by Trustee and Company
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, on or before June 30 and December 31 of each year, a
list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders as of a date not more than fifteen (15) days prior to
the delivery thereof, and
(b) at such other times as the Trustee may request in writing, within
thirty (30) days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than fifteen (15) days prior to
the time such list is furnished, in each case to the extent such information is
in the possession or control of the Company and has not otherwise been received
by the Trustee in its capacity as Securities Registrar.
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SECTION 7.2. Preservation of Information, Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Securities
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Senior Notes, and the
corresponding rights and privileges of the Trustee, shall be as provided in the
Trust Indenture Act.
(c) Every Holder of Senior Notes, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company nor the Trustee nor
any agent of either of them shall be held accountable by reason of the
disclosure of information as to the names and addresses of the Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Company and Trustee.
(a) The Company shall furnish to the Holders and to prospective purchasers
of Senior Notes, upon their request, the information required to be furnished
pursuant to Rule 144A(d)(4) under the Securities Act.
(b) The Company shall furnish to (i) the Holders and to subsequent holders
of Senior Notes, (ii) each Purchaser, (iii) any beneficial owner of the Senior
Notes reasonably identified to the Company (which identification may be made
either by such beneficial owner or by the Placement Agent or any Purchaser) and
(iv) any designee of (i), (ii) or (iii) above, a duly completed and executed
certificate in the form attached hereto as Exhibit A, including the financial
statements and financial covenant ratio referenced in such Exhibit, which
certificate and financial statements shall be so furnished by the Company not
later than forty five (45) days after the end of each of the first three fiscal
quarters of each fiscal year of the Company and not later than ninety (90) days
after the end of each fiscal year of the Company.
(c) The Trustee shall receive all reports, certificates and information,
which it is entitled to receive under each of the Operative Documents, and
deliver to (i) each Purchaser, (ii) the Placement Agent and (iii) a designee of
(i) or (ii) above, as identified in writing to the Trustee, all such reports,
certificates or information promptly upon receipt thereof.
ARTICLE VIII
Consolidation, Merger, Conveyance, Transfer or Lease
SECTION 8.1. Company and Guarantor May Consolidate, Etc., Only on Certain
Terms.
(a) The Company shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and
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no Person shall consolidate with or merge into the Company or convey, transfer
or lease its properties and assets substantially as an entirety to the Company,
unless:
(i) if the Company shall consolidate with or merge into another Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, the entity formed by such consolidation or into
which the Company is merged or the Person that acquires by conveyance or
transfer, or that leases, the properties and assets of the Company
substantially as an entirety shall be an entity organized and existing
under the laws of the United States of America or any State or Territory
thereof or the District of Columbia and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, the due and punctual payment
of the principal of and any premium and interest (including any Additional
Interest) on all the Senior Notes and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(ii) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have happened and be continuing; and
(iii) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, any such
supplemental indenture comply with this Article VIII and that all
conditions precedent herein provided for relating to such transaction have
been complied with; and the Trustee may rely upon such Officers'
Certificate and Opinion of Counsel as conclusive evidence that such
transaction complies with this Section 8.1.
(b) The Guarantor shall not consolidate with or merge into any other Person
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, and no Person shall consolidate with or merge into the
Guarantor or convey, transfer or lease its properties and assets substantially
as an entirety to the Guarantor, unless:
(i) if the Guarantor shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, the entity formed by such consolidation or
into which the Guarantor is merged or the Person that acquires by
conveyance or transfer, or that leases, the properties and assets of the
Guarantor substantially as an entirety shall be an entity organized and
existing under the laws of the United States of America or any State or
Territory thereof or the District of Columbia and shall expressly assume,
by an indenture supplemental hereto, executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, the due and punctual
payment of the principal of and any premium and interest (including any
Additional Interest) on all the Senior Notes and the performance of every
covenant of this Indenture on the part of the Guarantor to be performed or
observed;
52
(ii) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time, or both, would
constitute an Event of Default, shall have happened and be continuing; and
(iii) the Guarantor has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, any such
supplemental indenture comply with this Article VIII and that all
conditions precedent herein provided for relating to such transaction have
been complied with; and the Trustee may rely upon such Officers'
Certificate and Opinion of Counsel as conclusive evidence that such
transaction complies with this Section 8.1.
SECTION 8.2. Successor Company or Guarantor Substituted.
(a) Upon any consolidation or merger by the Company or the Guarantor, as
the case may be, with or into any other Person, or any conveyance, transfer or
lease by the Company or Guarantor of its properties and assets substantially as
an entirety to any Person in accordance with Section 8.1 and the execution and
delivery to the Trustee of the supplemental indenture described in Section
8.1(a) or Section 8.1(b), as the case may be, the successor entity formed by
such consolidation or into which the Company or the Guarantor, as the case may
be, is merged or to which such conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Company or the Guarantor, as the case may be, under this Indenture with the
same effect as if such successor Person had been named as the Company or the
Guarantor, as the case may be, herein; and in the event of any such conveyance
or transfer, following the execution and delivery of such supplemental
indenture, the Company or the Guarantor, as the case may be, shall be discharged
from all obligations and covenants under the Indenture and the Senior Notes.
(b) Such successor Person to the Company may cause to be executed, and may
issue either in its own name or in the name of the Company, any or all of the
Senior Notes issuable hereunder that theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
Person instead of the Company and subject to all the terms, conditions and
limitations in this Indenture prescribed, the Trustee shall authenticate and
shall deliver any Senior Notes that previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Senior Notes that such successor Person thereafter shall cause to be
executed and delivered to the Trustee on its behalf. All the Senior Notes so
issued shall in all respects have the same legal rank and benefit under this
Indenture as the Senior Notes theretofore or thereafter issued in accordance
with the terms of this Indenture.
(c) In case of any such consolidation, merger, sale, conveyance or lease,
such changes in phraseology and form may be made in the Senior Notes thereafter
to be issued as may be appropriate to reflect such occurrence.
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ARTICLE IX
Supplemental Indentures
SECTION 9.1. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders, the Company and the Guarantor, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(a) to evidence the succession of another Person to the Company or the
Guarantor, as the case may be, and the assumption by any such successor of the
covenants of the Company or the Guarantor, as the case may be, herein and in the
Senior Notes; or
(b) to cure any ambiguity, to correct or supplement any provision herein
that may be defective or inconsistent with any other provision herein, or to
make or amend any other provisions with respect to matters or questions arising
under this Indenture, which shall not be inconsistent with the other provisions
of this Indenture, provided, that such action pursuant to this clause (b) shall
not adversely affect in any material respect the interests of any Holders; or
(c) to add to the covenants, restrictions or obligations of the Company or
the Guarantor or to add to the Events of Default, provided, that such action
pursuant to this clause (c) shall not adversely affect in any material respect
the interests of any Holders.
SECTION 9.2. Supplemental Indentures with Consent of Holders.
(a) With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Senior Notes, by Act of said
Holders delivered to the Company, the Guarantor and the Trustee, the Company and
the Guarantor, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental hereto for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of this Indenture or of modifying in any manner the rights of the Holders of
Senior Notes under this Indenture; provided, that no such supplemental indenture
shall, without the consent of the Holder of each Outstanding Senior Note,
(i) except as set forth in Section 3.1(f), change the Stated Maturity
of the principal or any premium of any Senior Note or change the date of
payment of any installment of interest (including any Additional Interest)
on any Senior Note, or reduce the principal amount thereof or the rate of
interest thereon or any premium payable upon the redemption thereof or
change the Place of Payment where, or the coin or currency in which, any
Senior Note or interest thereon is payable, or restrict or impair the right
to institute suit for the enforcement of any such payment on or after such
date (or, in the case of redemption, on the Redemption Date), or
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(ii) reduce the percentage in aggregate principal amount of the
Outstanding Senior Notes, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver of compliance with any provision of this Indenture or of
defaults hereunder and their consequences provided for in this Indenture,
or
(iii) modify any of the provisions of this Section 9.2, Section 5.13
or Section 10.6, except to increase any percentage in aggregate principal
amount of the Outstanding Senior Notes, the consent of whose Holders is
required for any reason, or to provide that certain other provisions of
this Indenture cannot be modified or waived without the consent of the
Holder of each Senior Note.
(b) It shall not be necessary for any Act of Holders under this Section 9.2
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing or accepting the additional trusts created by any supplemental
indenture permitted by this Article IX or the modifications thereby of the
trusts created by this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in conclusively relying upon, an Officers' Certificate
and an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture, and that all conditions
precedent herein provided for relating to such action have been complied with.
The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture that affects the Trustee's own rights, duties, indemnities or
immunities under this Indenture or otherwise. Copies of the final form of each
supplemental indenture shall be delivered by the Trustee at the expense of the
Company to each Holder, promptly after the execution thereof.
SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article IX,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Senior Notes theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 9.5. Reference in Senior Notes to Supplemental Indentures.
Senior Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article IX may, and shall if required by
the Company, bear a notation in form approved by the Company as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Senior Notes so modified as to conform, in the opinion of the Company, to
any such supplemental indenture may be prepared and executed by the Company and
the Guarantor and authenticated and delivered by the Trustee in exchange for
Outstanding Senior Notes.
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ARTICLE X
Covenants
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of the Holders of the
Senior Notes that it will duly and punctually pay the principal of and any
premium and interest (including any Additional Interest) on the Senior Notes in
accordance with the terms of the Senior Notes and this Indenture.
SECTION 10.2. Money for Senior Note Payments to be Held in Trust.
(a) If the Company shall at any time act as its own Paying Agent with
respect to the Senior Notes, it will, on or before each due date of the
principal of and any premium or interest (including any Additional Interest) on
the Senior Notes, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal and any premium or
interest (including Additional Interest) so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided, and will
promptly notify the Trustee in writing of its failure so to act.
(b) Whenever the Company shall have one or more Paying Agents, it will,
prior to 10:00 a.m., New York City time, on each due date of the principal of or
any premium or interest (including any Additional Interest) on any Senior Notes,
deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be
held as provided in the Trust Indenture Act and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its failure so to act.
(c) The Company will cause each Paying Agent for the Senior Notes other
than the Trustee to execute and deliver to the Trustee an instrument in which
such Paying Agent shall agree with the Trustee, subject to the provisions of
this Section 10.2, that such Paying Agent will (i) comply with the provisions of
this Indenture and the Trust Indenture Act applicable to it as a Paying Agent
and (ii) during the continuance of any default by the Company (or any other
obligor upon the Senior Notes) in the making of any payment in respect of the
Senior Notes, upon the written request of the Trustee, forthwith pay to the
Trustee all sums held in trust by such Paying Agent for payment in respect of
the Senior Notes.
(d) The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same terms as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
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(e) Any money deposited with the Trustee or any Paying Agent, or then held
by the Company in trust for the payment of the principal of and any premium or
interest (including any Additional Interest) on any Senior Note and remaining
unclaimed for two years after such principal and any premium or interest has
become due and payable shall (unless otherwise required by mandatory provision
of applicable escheat or abandoned or unclaimed property law) be paid on Company
Request to the Company, or (if then held by the Company) shall (unless otherwise
required by mandatory provision of applicable escheat or abandoned or unclaimed
property law) be discharged from such trust; and the Holder of such Senior Note
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, The City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than thirty (30) days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 10.3. Statement as to Compliance.
The Company shall deliver to the Trustee, within one hundred and twenty
(120) days after the end of each fiscal year of the Company ending after the
date hereof, an Officers' Certificate (substantially in the form attached hereto
as Exhibit B) covering the preceding fiscal year, stating whether or not to the
knowledge of the signers thereof the Company is in default in the performance or
observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided
hereunder), and if the Company shall be in default, specifying all such defaults
and the nature and status thereof of which they may have knowledge.
SECTION 10.4. Maximum Leverage.
The ratio of Total Indebtedness to Total Asset Value for any Defined Period
shall not be greater than sixty-five percent (65%).
SECTION 10.5. Additional Covenants.
(a) Each of the Guarantor and the Company covenants and agrees with each
Holder of Senior Notes that if an Event of Default shall have occurred and be
continuing, it shall not (i) declare or pay any dividends or distributions on,
or redeem, purchase, acquire or make a liquidation payment with respect to, any
of the Company's or the Gurantor's Equity Interests, (ii) vote in favor of or
permit or otherwise allow any of its Subsidiaries to declare or pay any
dividends or distributions on, or redeem, purchase, acquire or make a
liquidation payment with respect to or otherwise retire, any of such
Subsidiary's Equity Interests entitling the holders thereof to a stated rate of
return other than dividends or distributions on Equity Interests payable solely
to the Company, the Guarantor or any Subsidiary thereof (for the avoidance of
doubt, whether such Equity Interests are perpetual or otherwise), or (iii) make
any payment of principal
57
of or any interest or premium on or repay, repurchase or redeem any debt
securities of the Company that rank pari passu in all respects with or junior in
interest to the Senior Notes.
(b) The Guarantor shall maintain its status as a real estate investment
trust under the Internal Revenue Code of 1986, as amended, unless and until such
time as the Guarantor's Board of Directors determines that it is no longer
advisable to maintain its status as a real estate investment trust.
SECTION 10.6. Waiver of Covenants.
The Company may omit in any particular instance to comply with any covenant
or condition contained in Section 10.5 if, before or after the time for such
compliance, the Holders of at least a majority in aggregate principal amount of
the Outstanding Senior Notes shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company in respect of any such covenant
or condition shall remain in full force and effect.
SECTION 10.7. Treatment of Senior Notes.
The Company will treat the Senior Notes as indebtedness, and the amounts
(other than payments of principal) payable in respect of the principal amount of
such Senior Notes as interest, for all U.S. federal income tax purposes. All
payments in respect of the Senior Notes will be made free and clear of U.S.
withholding tax to any beneficial owner thereof that has provided an Internal
Revenue Service Form W-9 or W-8BEN (or any substitute or successor form)
establishing its U.S. or non-U.S. status for U.S. federal income tax purposes.
SECTION 10.8. Change in Control.
(a) In the event of a Change of Control, then, upon written notice (a
"Repurchase Notice") delivered to the Company, the Guarantor and the Trustee by
the Holders of not less than 10% of the aggregate principal amount of the Senior
Notes Outstanding, the Company and the Guarantor shall be jointly and severally
obligated to offer to repurchase from all of the Holders, and shall repurchase
from such Holders who accept such offer, all of the outstanding Senior Notes
held by such Holders, at a repurchase price equal to 100% of the aggregate
principal amount of the Senior Notes being repurchased, with accrued interest,
including any Additional Interest thereon to, but excluding, the date of such
repurchase and any Breakage Costs. The Repurchase Notice shall be delivered by
such Holders within 20 days following receipt of the Change of Control Notice,
and any repurchase shall be consummated no later than 20 days following the
occurrence of a Change in Control. In the event that the Holders of not less
than 10% of the aggregate principal amount of the Senior Notes Outstanding do
not deliver a Repurchase Notice within the required time set forth in this
Section 10.8 in respect of a Change of Control Notice, then the Holders shall be
deemed to have waived their option to have their Senior Notes repurchased
pursuant to this Section 10.8 in respect of such Change of Control.
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(b) In the event of a Change of Control, the Company or the Guarantor shall
deliver notice of such Change of Control (a "Change of Control Notice") to the
Holders and the Trustee at least 45 days prior to the effective date of the
Change of Control.
SECTION 10.9. Calculation Agent.
(a) The Company hereby agrees that for so long as any of the Senior Notes
remain Outstanding, there will at all times be a calculation agent appointed to
calculate LIBOR in respect of each Interest Payment Date in accordance with the
terms of Schedule A hereto (the "Calculation Agent"). The Company has initially
appointed the Trustee as the Calculation Agent for purposes of determining LIBOR
for each Interest Payment Date. The Calculation Agent may be removed by the
Company at any time. If the Calculation Agent is unable or unwilling to act as
such or is removed by the Company, the Company will promptly appoint as a
replacement Calculation Agent the London office of a leading bank which is
engaged in transactions in U.S. Dollar deposits in Europe in the international
market for U.S. Dollar deposits in Europe and which does not control or is not
controlled by or under common control with the Company or its Affiliates. The
Calculation Agent may not resign its duties without a successor having been duly
appointed.
(b) The Calculation Agent shall be required to agree that, as soon as
possible after 11:00 a.m. (London time) on each LIBOR Determination Date, but in
no event later than 11:00 a.m. (London time) on the Business Day immediately
following such LIBOR Determination Date, the Calculation Agent will calculate
the interest rate and dollar amount (rounded to the nearest cent, with half a
cent being rounded upwards) for the related Interest Payment Date, and will
communicate such rate and amount to the Company, the Trustee, each Paying Agent
and the Depositary. The Calculation Agent shall also specify to the Company the
quotations upon which the foregoing rates and amounts are based and, in any
event, the Calculation Agent shall notify the Company before 5:00 p.m. (London
time) on each LIBOR Determination Date that either: (i) it has determined or is
in the process of determining the foregoing rates and amounts or (ii) it has not
determined and is not in the process of determining the foregoing rates and
amounts, together with its reasons therefor. The Calculation Agent's
determination of the foregoing rates and amounts for any Interest Payment Date
will (in the absence of manifest error) be final and binding upon all parties.
For the sole purpose of calculating the interest rate for the Senior Notes,
"Business Day" shall be defined as any day on which dealings in deposits in
Dollars are transacted in the London interbank market.
ARTICLE XI
Redemption of Senior Notes
SECTION 11.1. Optional Redemption.
The Company may, at its option, on any Interest Payment Date, on or after
July 30, 2011, redeem the Senior Notes in whole at any time or in part from time
to time, at a Redemption Price equal to one hundred (100%) percent of the
principal amount thereof (or of the redeemed portion thereof, as applicable),
together, in the case of any such redemption, with accrued interest,
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including any Additional Interest, and any premiums, to but excluding the date
fixed for redemption.
SECTION 11.2. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Senior Notes, in whole or in
part, shall be evidenced by or pursuant to a Board Resolution. In case of any
redemption at the election of the Company, the Company shall, not less than
thirty (30) days and not more than sixty (60) days prior to the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such date and of the principal amount of the Senior Notes
to be redeemed and provide the additional information required to be included in
the notice or notices contemplated by Section 11.4. A failure to give such
notice by mail or any defect in the notice to the Holder of any Senior Note
designated for redemption as a whole or in part shall not affect the validity of
the proceedings for the redemption of any other Senior Note. In the case of any
redemption of Senior Notes, in whole or in part, (a) prior to the expiration of
any restriction on such redemption provided in this Indenture or the Senior
Notes or (b) pursuant to an election of the Company which is subject to a
condition specified in this Indenture or the Senior Notes, the Company shall
furnish the Trustee with an Officers' Certificate and an Opinion of Counsel
evidencing compliance with such restriction or condition.
SECTION 11.3. Selection of Senior Notes to be Redeemed.
(a) If less than all the Senior Notes are to be redeemed, the particular
Senior Notes to be redeemed shall be selected and redeemed on a pro rata basis
not more than sixty (60) days prior to the Redemption Date by the Trustee from
the Outstanding Senior Notes not previously called for redemption by such
methods as the Trustee shall deem fair and appropriate, provided, that the
unredeemed portion of the principal amount of any Senior Note shall be in an
authorized denomination (which shall not be less than the minimum authorized
denomination) for such Senior Note.
(b) The Trustee shall promptly notify the Company and the Securities
Registrar (if other than itself) in writing of the Senior Notes selected for
redemption and, in the case of any Senior Notes selected for partial redemption,
the principal amount thereof to be redeemed. For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption
of Senior Notes shall relate, in the case of any Senior Note redeemed or to be
redeemed only in part, to the portion of the principal amount of such Senior
Note that has been or is to be redeemed.
(c) The provisions of paragraphs (a) and (b) of this Section 11.3 shall not
apply with respect to any redemption affecting only a single Senior Note,
whether such Senior Note is to be redeemed in whole or in part. In the case of
any such redemption in part, the unredeemed portion of the principal amount of
the Senior Note shall be in an authorized denomination (which shall not be less
than the minimum authorized denomination) for such Senior Note.
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SECTION 11.4. Notice of Redemption.
(a) Notice of redemption shall be given in the manner provided in Section
1.6 not later than the thirtieth (30th) day, and not earlier than the sixtieth
(60th) day, prior to the Redemption Date to each Holder of Senior Notes to be
redeemed, in whole or in part.
(b) With respect to Senior Notes to be redeemed, in whole or in part, each
notice of redemption shall state:
(i) the Redemption Date;
(ii) the Redemption Price or, if the Redemption Price cannot be
calculated prior to the time the notice is required to be sent, the
estimate of the Redemption Price, as calculated by the Company, together
with a statement that it is an estimate and that the actual Redemption
Price will be calculated on the fifth (5th) Business Day prior to the
Redemption Date (and if an estimate is provided, a further notice shall be
sent of the actual Redemption Price on the date that such Redemption Price
is calculated);
(iii) if less than all Outstanding Senior Notes are to be redeemed,
the identification (and, in the case of partial redemption, the respective
principal amounts) of the particular Senior Notes to be redeemed;
(iv) that on the Redemption Date, the Redemption Price, with accrued
interest, including any Additional Interest, and any premiums, will become
due and payable upon each such Senior Note or portion thereof, and that any
interest (including any Additional Interest) on such Senior Note or such
portion, as the case may be, shall cease to accrue on and after said date;
and
(v) the place or places where such Senior Notes are to be surrendered
for payment of the Redemption Price.
(c) Notice of redemption of Senior Notes to be redeemed, in whole or in
part, at the election of the Company shall be given by the Company or, at the
Company's request, by the Trustee in the name and at the expense of the Company
and shall be irrevocable. The notice if mailed in the manner provided above
shall be conclusively presumed to have been duly given, whether or not the
Holder receives such notice. In any case, a failure to give such notice by mail
or any defect in the notice to the Holder of any Senior Note designated for
redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of any other Senior Note.
SECTION 11.5. Deposit of Redemption Price.
On or prior to 10:00 a.m., New York City time, on the Redemption Date
specified in the notice of redemption given as provided in Section 11.4, the
Company will deposit with the Trustee or with one or more Paying Agents (or if
the Company is acting as its own Paying Agent, the Company will segregate and
hold in trust as provided in Section 10.2) an amount of
61
money sufficient to pay on the Redemption Date the Redemption Price of, and any
accrued interest (including any Additional Interest) on, all the Senior Notes
(or portions thereof) that are to be redeemed on that date.
SECTION 11.6. Payment of Senior Notes Called for Redemption.
(a) If any notice of redemption has been given as provided in Section 11.4,
the Senior Notes or portion of Senior Notes with respect to which such notice
has been given shall become due and payable on the date and at the place or
places stated in such notice at the applicable Redemption Price, together with
accrued interest (including any Additional Interest) and any premiums, to the
Redemption Date. On presentation and surrender of such Senior Notes at a Place
of Payment specified in such notice, the Senior Notes or the specified portions
thereof shall be paid and redeemed by the Company at the applicable Redemption
Price, together with accrued interest (including any Additional Interest) to the
Redemption Date.
(b) Upon presentation of any Senior Note redeemed in part only, the Company
shall execute and upon receipt thereof the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Senior Note
or Senior Notes, of authorized denominations, in aggregate principal amount
equal to the unredeemed portion of the Senior Note so presented and having the
same Original Issue Date, Stated Maturity and terms.
(c) If any Senior Note called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of and any premium on such
Senior Note shall, until paid, bear interest from the Redemption Date at the
rate prescribed therefor in the Senior Note.
ARTICLE XII
Guarantee
SECTION 12.1. The Guarantee.
The Guarantor hereby fully, unconditionally and irrevocably guarantees to
each holder of a Senior Note authenticated and delivered by the Trustee the due
and punctual payment of the principal of and any premium and interest (including
Additional Interest) on such Senior Note, when and as the same shall become due
and payable, whether at Maturity, by acceleration, upon redemption or otherwise,
in accordance with the terms of such Senior Note and this Indenture, as well as
the due and punctual performance of all other obligations contained in the
Senior Notes and this Indenture. In case of the failure of the Company to
punctually pay its obligations on any Senior Note, the Guarantor hereby agrees
to cause any such payment to be made punctually when and as the same shall
become due and payable, whether at Maturity, by acceleration, upon redemption or
otherwise, and as if such payment were made by the Company. This Guarantee will
rank pari passu with all of the Guarantor's other unsecured obligations,
including other guarantees.
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SECTION 12.2. Guarantee Unconditional, etc.
The Guarantor hereby agrees that it shall be liable as principal and as
debtor hereunder with respect to its obligations under this Article XII. This
Article XII creates a guarantee of payment and not of collection on the part of
the Guarantor. The Guarantor's obligations hereunder shall be absolute,
irrevocable and unconditional, irrespective of, and shall be unaffected by, any
invalidity, irregularity or unenforceability of any Senior Note or this
Indenture, any failure to enforce the provisions of any Senior Note or this
Indenture, or any waiver, modification, consent or indulgence granted with
respect thereto by the holder of such Senior Note or the Trustee, the recovery
of any judgment against the Company or any action to enforce the same, or any
other circumstances which may otherwise constitute a legal or equitable
discharge of a surety or guarantor. The Guarantor hereby waives diligence,
presentment, demand of payment, filing of claims with a court in the event of
merger, insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to any such
Senior Note or the indebtedness evidenced thereby and all demands whatsoever,
and covenants that this Guarantee will not be discharged except by payment in
full of the principal of and any premium, and interest (including Additional
Interest) on the Senior Notes and the complete performance of all other
obligations contained in the Senior Notes and this Indenture. The Guarantor
further agrees, to the fullest extent that it lawfully may do so, that, as
between the Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, the Maturity of the Senior Notes shall or may, as the case may be,
be accelerated as provided in this Indenture for purposes of the Guarantor's
obligations under this Guarantee, notwithstanding any stay, injunction or
prohibition existing under any bankruptcy, insolvency, reorganization or other
similar law of any jurisdiction preventing such acceleration in respect of the
obligations guaranteed hereby.
SECTION 12.3. Reinstatement.
This Guarantee shall continue to be effective or be reinstated, as the case
may be, if at any time a payment in respect of any Senior Note, in whole or in
part, is rescinded or must otherwise be restored to the Company or the Guarantor
upon the bankruptcy, liquidation or reorganization of the Company or otherwise.
SECTION 12.4. Subrogation.
The Guarantor shall be subrogated to all rights of the Holder of any Senior
Note against the Company in respect of any amounts paid to such Holder by the
Guarantor pursuant to the provisions of this Guarantee; provided, however, that
the Guarantor shall not be entitled to enforce, or to receive any payments
arising out of or based upon, such right of subrogation as a result of payment
under this Guarantee, if, after giving effect to any such payment, any amounts
are due and unpaid under this Guarantee. If any amount shall be paid to the
Guarantor in violation of the preceding sentence, the Guarantor agrees to hold
such amount in trust for the Holders and to pay such amount to the Holders.
This instrument 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
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one and the same instrument. Delivery of an executed signature page of this
Indenture by facsimile transmission shall be effective as delivery of a manually
executed counterpart hereof.
* * * *
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
MPT OPERATING PARTNERSHIP, L.P.,
as Issuer
By: /s/ R. Xxxxxx Xxxxxx
------------------------------------
R. Xxxxxx Xxxxxx
Executive Vice President and
Chief Financial Officer
MEDICAL PROPERTIES TRUST, INC.,
as Guarantor
By: /s/ R. Xxxxxx Xxxxxx
------------------------------------
R. Xxxxxx Xxxxxx
Executive Vice President and
Chief Financial Officer
Wilmington Trust Company, as Trustee
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Xxxxxxx X. Xxxxx
Senior Financial Services Officer
65
SCHEDULE A
DETERMINATION OF LIBOR
With respect to the Senior Notes, the London interbank offered rate
("LIBOR") shall be determined by the Calculation Agent in accordance with the
following provisions (in each case rounded to the nearest .000001%):
(1) On the second LIBOR Business Day (as defined below) prior to an Interest
Payment Date, occurring after the Interest Payment Date in July, 2011 (each such
day, a "LIBOR Determination Date"), LIBOR shall, for the following interest
payment period, equal the rate, as obtained by the Calculation Agent from
Bloomberg Financial Markets Commodities News, for three-month U.S. Dollar
deposits in Europe, which appears on Dow Xxxxx Telerate Page 3750 (as defined in
the International Swaps and Derivatives Association, Inc. 1991 Interest Rate and
Currency Exchange Definitions), or such other page as may replace such Page
3750, as of 11:00 a.m. (London time) on such LIBOR Determination Date.
(2) If, on any LIBOR Determination Date, such rate does not appear on Dow Xxxxx
Telerate Page 3750 or such other page as may replace such Page 3750, the
Calculation Agent shall determine the arithmetic mean of the offered quotations
of the Reference Banks (as defined below) to leading banks in the London
interbank market for three-month U.S. Dollar deposits in Europe in an amount
determined by the Calculation Agent by reference to requests for quotations as
of approximately 11:00 a.m. (London time) on the LIBOR Determination Date made
by the Calculation Agent to the Reference Banks. If, on any LIBOR Determination
Date, at least two of the Reference Banks provide such quotations, LIBOR shall
equal such arithmetic mean of such quotations. If, on any LIBOR Determination
Date, only one or none of the Reference Banks provide such quotations, LIBOR
shall be deemed to be the arithmetic mean of the offered quotations that leading
banks in the City of New York selected by the Calculation Agent are quoting on
the relevant LIBOR Determination Date for three-month U.S. Dollar deposits in
Europe in an amount determined by the Calculation Agent by reference to the
principal London offices of leading banks in the London interbank market;
provided that, if the Calculation Agent is required but is unable to determine a
rate in accordance with at least one of the procedures provided above, LIBOR
shall be LIBOR as determined on the previous LIBOR Determination Date, or
adequate and fair means do not exist for ascertaining the applicable interest
rate on the basis set forth above (due to changes arising in the interbank
Eurocurrency market or otherwise), then the Senior Notes shall not bear interest
in respect of LIBOR but shall instead bear interest with reference to a floating
rate equal to the Base Rate (as defined below).
(3) As used herein: "Reference Banks" means four major banks in the London
interbank market selected by the Calculation Agent; and "LIBOR Business Day"
means a day on which commercial banks are open for business (including dealings
in foreign exchange and foreign currency deposits) in London; the "Base Rate" on
any day shall equal the greater of the arithmetic mean of (i) the "prime rate"
for dollar denominated loans quoted by leading banks in the City of New York
selected by the Calculation Agent and (ii) the Federal Funds Rate (as defined
below) plus 0.50% per annum; and the "Federal Funds Rate" on any day equals the
rate per annum equal to the weighted average (rounded upwards to the nearest
0.000001) of the rate on overnight federal funds transactions with members of
the Federal Reserve System only
1
SCHEDULE A
arranged by federal funds brokers, as published as of such day by the Federal
Reserve Bank of New York.
2
EXHIBIT A
Form of Officer's Financial Certificate
The undersigned, the [Chief Financial Officer/Treasurer/Assistant
Treasurer/Secretary/ Assistant Secretary/Chairman/ViceChairman/Chief Executive
Officer/President/Vice President] of Medical Properties Trust, Inc. (the
"Guarantor") hereby certifies, in such capacity and not individually, pursuant
to Section 7.3(b) of the Indenture, dated as of July 14, 2006, that:
[FOR FISCAL YEAR END: Attached hereto are the audited consolidated financial
statements (including the balance sheet, income statement and statement of cash
flows, and notes thereto, together with the report of the independent
accountants thereon) of the Guarantor and its consolidated subsidiaries for the
three years ended _______, 20__.]
[FOR FISCAL QUARTER END: Attached hereto are the unaudited consolidated
financial statements (including the balance sheet and income statement) of the
Guarantor and its consolidated subsidiaries for the fiscal quarter and
[six/nine] month period ended _______, 20__.]
The financial statements fairly present in all material respects, in accordance
with U.S. generally accepted accounting principles ("GAAP"), the financial
position of the Guarantor and its consolidated subsidiaries, and the results of
operations and changes in financial condition as of the date, and for the
[quarter] [annual] period ended _______, 20__, and such financial statements
have been prepared in accordance with GAAP consistently applied throughout the
period involved (expect as otherwise noted therein).
Attached hereto is a schedule showing the calculation of Total Indebtedness to
Total Asset Value ratio of the Guarantor and its consolidated subsidiaries for
the fiscal quarter ended _______, 20__ calculated pursuant to Section 10.4 of
the Indenture.
Attached hereto is a current organizational chart of the Guarantor and its
subsidiaries as of the date hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Ex. A-1
EXHIBIT A
IN WITNESS WHEREOF, the undersigned has executed this Officer's Financial
Certificate as of this _____ day of _____________, 20__.
By:
------------------------------------
Name:
----------------------------------
Medical Properties Trust, Inc.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
(000) 000-0000
Ex. A-2
Exhibit B
FORM OF
OFFICERS' CERTIFICATE
UNDER
SECTION 10.3
Pursuant to Section 10.3 of the Indenture, dated as of July 14, 2006 (as
amended or supplemented from time to time, the "Indenture"), between MPT
Operating Partnership, L.P., as issuer (the "Company"), Medical Properties
Trust, Inc., as guarantor, and Wilmington Trust Company, as trustee, each of the
undersigned hereby certifies in such capacity listed and not individually that,
to the knowledge of the undersigned, the Company is not in default in the
performance or observance of any of the terms, provisions or conditions
contained in the Indenture (without regard to any period of grace or requirement
of notice provided under the Indenture), for the fiscal year ending on ________,
20__ [, except as follows: specify each such default and the nature and status
thereof].
Capitalized terms used herein, and not otherwise defined herein, have the
respective meanings assigned thereto in the Indenture.
IN WITNESS WHEREOF, the undersigned have executed this Officers'
Certificate as of ___________, 20__.
----------------------------------------
Name:
----------------------------------
Title: [Must be the Chairman of the
Board, a Vice Chairman of the
Board, the Chief Executive
Officer, the President, or a Vice
President] of MPT Operating
Partnership, L.P.
----------------------------------------
Name:
----------------------------------
Title: [Must be the Chief Financial
Officer, the Treasurer, an
Assistant Treasurer, the
Secretary or an Assistant
Secretary] of MPT Operating
Partnership, L.P.
B-1
Exhibit C
FORM OF TRANSFEREE CERTIFICATE
TO BE EXECUTED BY TRANSFEREES OTHER THAN QIBS
__________, [ ]
MPT Operating Partnership, L.P.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Re: Purchase of $___ of ___% Senior Notes (the "Senior Notes")
Ladies and Gentlemen:
In connection with our purchase of the Senior Notes we confirm that:
1. We understand that the ___% Senior Notes (the "Senior Notes") of
MPT Operating Partnership, L.P. (the "Company") (including the guarantee (the
"Guarantee") of Medical Properties Trust, Inc. (the "Guarantor") executed in
connection therewith) (the Senior Notes and the Guarantee together being
referred to herein as the "Offered Securities"), have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and may not be
offered or sold except as permitted in the following sentence. We agree on our
own behalf and on behalf of any investor account for which we are purchasing the
Offered Securities that, if we decide to offer, sell or otherwise transfer any
such Offered Securities, such offer, sale or transfer will be made only (a) to
the Company, (b) to a person we reasonably believe is a "qualified institutional
buyer" (a "QIB") (as defined in Rule 144 under the Securities Act) in a
transaction meeting the requirements of Rule 144A under the Securities Act, (c)
to an institutional "accredited investor" within the meaning of subparagraph (a)
(1), (2), (3) or (7) of Rule 501 under the Securities Act that is acquiring
Offered Securities for its own account, or for the account of such an
"accredited investor" within the meaning of subparagraph (a) (1), (2), (3) or
(7) of Rule 501 under the Securities Act, for investment purposes and not with a
view to, or for offer or sale in connection with, any distribution thereof in
violation of the Securities Act, (d) pursuant to an effective registration
statement under the Securities Act, or (e) pursuant to an exemption from the
Securities Act, in each case in accordance with any applicable securities laws
of any state of the United States or any other applicable jurisdiction and, in
the case of (c) or (e), subject to the right of the Company to require an
opinion of counsel. If any resale or other transfer of the Offered Securities is
proposed to be made pursuant to clause (c) or (e) above, the transferor shall
deliver a letter from the transferee substantially in the form of this letter to
the Trustee as Transfer Agent, which shall provide as applicable, among other
things, that the transferee is an "accredited investor" within the meaning of
subparagraph (a) (1), (2), (3) or (7) of Rule 501 under the Securities Act that
is acquiring such Securities for investment purposes and not for distribution in
violation of the Securities Act. We acknowledge on our behalf and on behalf of
any investor account for which we are purchasing Securities that the Company
reserves the right prior to any offer, sale or other transfer pursuant to clause
(e) or (c) to require the delivery of any opinion of counsel. We understand that
the certificates for any Offered Security that we receive will bear a legend
substantially to the effect of the foregoing.
C-1
Exhibit C
2. We are an "accredited investor" within the meaning of subparagraph
(a) (1), (2), (3) or (7) of Rule 501 under the Securities Act purchasing for our
own account or for the account of such an "accredited investor," and we are
acquiring the Offered Securities for investment purposes and not with a view to,
or for offer or sale in connection with, any distribution in violation of the
Securities Act, and we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of our
investment in the Offered Securities, and we and any account for which we are
acting are each able to bear the economic risks of our or its investment.
3. We are acquiring the Offered Securities purchased by us for our own
account (or for one or more accounts as to each of which we exercise sole
investment discretion and have authority to make, and do make, the statements
contained in this letter) and not with a view to any distribution of the Offered
Securities, subject, nevertheless, to the understanding that the disposition of
our property will at all times be and remain within our control.
4. In the event that we purchase any Senior Notes, we will acquire
such Senior Note having an aggregate amount of not less than $100,000 for our
own account and for each separate account for which we are acting.
5. We acknowledge that either (A) we are not an employee benefit plan,
individual retirement account or other plan or arrangement subject to Title I of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or
Section 4975 of the Internal Revenue Code of 1986, as amended (the "Code") (each
a "Plan"), or an entity whose underlying assets include "plan assets" by reason
of any Plan's investment in the entity, and are not purchasing the Offered
Securities on behalf of or with "plan assets" by reason of any Plan's investment
in the entity; (B) we are eligible for the exemptive relief available under one
or more of the following prohibited transaction class exemptions ("PTCEs")
issued by the U.S. Department of Labor: PTCE 96-23, 95-60, 91-38, 90-1 or 84-14
or another applicable exemption; or (C) our purchase and holding of this
security, or any interest therein, are not prohibited by Section 406 of ERISA or
Section 4975 of the Code with respect to such purchase and holding.
6. We acknowledge that the Company, the Guarantor and others will rely
upon the truth and accuracy of the foregoing acknowledgments, representations,
warranties and agreements and agree that if any of the acknowledgments,
representations, warranties and agreements deemed to have been made by our
purchase of the Offered Securities are no longer accurate, we shall promptly
notify the Company. If we are acquiring any Offered Securities as a fiduciary or
agent for one or more investor accounts, we represent that we have sole
discretion with respect to each such investor account and that we have full
power to make the foregoing acknowledgments, representations and agreement on
behalf of each such investor account.
(Name of Purchaser)
By:
------------------------------------
Date:
----------------------------------
C-2
Exhibit C
Upon transfer, the Offered Securities would be registered in the name
of the new beneficial owner as follows.
Name:
-------------------------------
Address:
----------------------------
Taxpayer ID Number:
-----------------
C-3
Exhibit D
FORM OF TRANSFEROR CERTIFICATE
TO BE EXECUTED FOR QIBs
__________, [ ]
MPT Operating Partnership, L.P.
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Re: Purchase of $___ amount of ___% Senior Notes (the "Senior Notes")
Reference is hereby made to the Indenture, dated as of July 14, 2006 (as
amended or supplemented from time to time, the "Indenture"), between MPT
Operating Partnership, L.P., as issuer, Medical Properties Trust, Inc., as
guarantor, and Wilmington Trust Company, as trustee. Capitalized terms used but
not defined herein shall have the meanings given them in the Indenture.
This letter relates to $________________________ aggregate amount of Senior
Notes which are held in the name of _____________ (the "Transferor").
In accordance with Article III of the Indenture, the Transferor hereby
certifies that such Senior Notes are being transferred in accordance with (i)
the transfer restrictions set forth in the Senior Notes and (ii) Rule 144A under
the Securities Act ("Rule 144A"), to a transferee that the Transferor reasonably
believes is purchasing the Senior Notes for its own account or an account with
respect to which the transferee exercises sole investment discretion and the
transferee and any such account is a "qualified institutional buyer" within the
meaning of Rule 144A, in a transaction meeting the requirements of Rule 144A and
in accordance with applicable securities laws of any state of the United States
or any other jurisdiction.
You are entitled to rely upon this letter and are irrevocably authorized to
produce this letter or a copy hereof to any interested party in any
administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
(Name of Transferor)
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date:
-------------------------------
D-1
