AMENDMENT AGREEMENT
AMENDMENT AGREEMENT (the "Amendment Agreement") dated as of July 16,
1998, by and between Meditrust Corporation (the "REIT"), Meditrust Operating
Company ("OPCO," and together with the REIT, the "Companies") and Xxxxxxx Xxxxx
International ("MLI"), through its agent Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("MLPF&S," and together with MLI the "Xxxxxxx Xxxxx Parties").
Reference is made herein to the Purchase Agreement and the Purchase Price
Adjustment Mechanism Agreement each dated as of February 26, 1998 by and between
the Companies and the Xxxxxxx Xxxxx Parties (the "Purchase Agreement," and the
"Adjustment Agreement," respectively). Capitalized terms not otherwise defined
herein shall have the meaning ascribed thereto in the Adjustment Agreement.
WHEREAS, Section 5 of the Adjustment Agreement provides, among other
things, that the Companies shall deliver the Interim Settlement Amount in
Interim Settlement Shares;
WHEREAS, the Companies and the Xxxxxxx Xxxxx Parties desire to amend
the Adjustment Agreement so as to allow for the delivery by the Companies of the
Interim Settlement Amount in cash, subject to the terms and conditions hereof;
WHEREAS, Section 4 of the Adjustment Agreement provides that MLI will,
at its discretion, sell the percentage of Adjustment Shares indicated therein in
transactions that involve a public offering; and
WHEREAS, the Purchase Shares and the Paired Shares delivered by the
Companies to MLI pursuant to the Adjustment Agreement are not the subject of an
Effective Registration Statement;
NOW, THEREFORE, in consideration of the mutual undertakings herein set
forth, the parties, intending to be legally bound, hereby agree as follows:
1. Within 5 Business Days following each Reset Date, the Companies may
deliver the Interim Settlement Amount (or 150% percent of the
Interim Settlement Amount if the Companies elect to deliver Interim
Settlement Shares that are not the subject of an Effective
Registration Statement) in either Interim Settlement Shares or cash
to MLI or its agent for deposit with MLI.
2. If on any Exchange Trading Day the Closing Price is below $25.50 (a
"Price Decline Event Date"), the Companies may elect to deliver cash
collateral in lieu of settlement of Adjustment Shares pursuant to
Section 4.1 of the Adjustment Agreement.
3. In the event the Companies elect to deliver cash collateral pursuant
to Section 2 hereof:
(i) such Price Decline Event Date shall be a Reset Date for
purposes of Section 5 of the Adjustment Agreement and Price
Decline Reset Dates will occur weekly beginning on the day one
week after the related Price Decline Event Date; provided,
that if such day is not an Exchange Trading Day then the Price
Decline Reset Date shall be the next Exchange Trading Day;
(ii) on such Reset Date and each subsequent Reset Date until the
final Price Decline Reset Date, Interim Settlement Amount for
purposes of Section 5 of the Adjustment Agreement shall mean
the amount by which the Reference Amount less $10,000,000
exceeds the product of (x) $25.50 and (y) the number of
Adjustment Shares;
(iii) within 5 Business Days following such Price Decline Event Date
and each Price Decline Reset Date thereafter, the Companies
shall deliver to MLI an amount in cash such that cash
collateral held by MLI pursuant to this clause (iii) of this
Section 3, exclusive of cash amounts otherwise held by MLI
pursuant to Section 5 of the Adjustment Agreement, shall equal
at least the product of (a) the difference between $25.50 and
the Closing Price on such Price Decline Event Date or Price
Decline Reset Date and (b) the Adjustment Shares; and
(iv) if on any Price Decline Reset Date, the Closing Price is
greater and has been greater than $25.50 for the preceding 4
Exchange Trading Days, such date shall be the final Price
Decline Reset Date for the related Price Decline Event Date
and within 2 Exchange Trading Days of such Price Decline Reset
Date, MLI shall deliver to the Companies the amount in cash
previously delivered to MLI by the Companies pursuant to this
Section 3 together with the interest accrued thereon.
4. If the Closing Price on any Exchange Trading Day is below $23.50,
MLI retains its right to settle Adjustment Shares pursuant to Section 4.1 of the
Adjustment Agreement, and the Company shall not have the right to avoid the
settlement of Adjustment Shares by posting cash collateral pursuant to 3 hereof.
5. In the event the Purchase Shares or any Interim Settlement Shares
are not the subject of an Effective Registration Statement, and MLI is entitled
to settle Adjustment Shares pursuant to Section 4.1 of the Adjustment Agreement,
MLI may effect a sale pursuant to such section, at its discretion, in a
commercially reasonable manner, other than as specified in Section 3.1 of the
Adjustment
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Agreement, which may include a private placement at a discount to the
Closing Price on the date or dates of such sale or sales.
6. Notwithstanding the provisions of Section 5 of the Adjustment
Agreement to the contrary, all cash amounts on deposit with MLI pursuant to
Section 5 of the Adjustment Agreement and Sections 1 and 3 hereof shall bear
interest at the Federal Funds rate determined with reference to the publication
of the Board of Governors of the Federal Reserve System "Statistical Release
H.15(519), Selected Interest Rates" under the heading "Federal Funds
(Effective)" plus the Spread.
7. If on any Reset Date MLI is required pursuant to Section 5 of the
Adjustment Agreement to deliver the amount in excess of the Interim Settlement
Amount held by MLI on such Reset Date, MLI shall deliver to the Companies the
amount of such excess in cash, to the extent of any cash collateral held by MLI
pursuant to the Adjustment Agreement as amended hereby, and, in Interim
Settlement Shares, to the extent of any remaining such excess.
8. The Companies agree to file a registration statement covering the
sale of Paired Shares delivered to MLI pursuant to the Purchase Agreement and
the Adjustment Agreement by the close of the 10th Business Day from the first
Business Day following the date on which the articles of merger in connection
with the merger of La Quinta Inns, Inc. and the Companies are filed and to use
their best efforts to have the same declared effective by the Commission as
promptly as practicable.
9. This Amendment Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which shall constitute one and the
same instrument.
10. Except as hereby amended, the Adjustment Agreement shall remain in
full force and effect.
11. In the event of any conflict between the provisions of the
Adjustment Agreement and this Amendment Agreement, the provisions of this
Amendment Agreement shall govern.
12. This Amendment Agreement shall be governed by, and interpreted in
accordance with, the laws of the State of New York, all rights and remedies
being governed by such laws.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Amendment Agreement as of the date first above written
XXXXXXX XXXXX INTERNATIONAL
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:
---------------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------------
Name:
Title:
MEDITRUST OPERATING COMPANY
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary
MEDITRUST CORPORATION
By:
---------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Amendment Agreement as of the date first above written
XXXXXXX XXXXX INTERNATIONAL
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By:
---------------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------------
Name:
Title:
MEDITRUST OPERATING COMPANY
By:
---------------------------------------
Name:
Title:
MEDITRUST CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Amendment Agreement as of the date first above written
XXXXXXX XXXXX INTERNATIONAL
By: Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By: /s/ Xxxx X'xxxxxxx
---------------------------------------
Name: Xxxx X'xxxxxxx
Title: Managing Director
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx X'xxxxxxx
---------------------------------------
Name: Xxxx X'xxxxxxx
Title: Managing Director
MEDITRUST OPERATING COMPANY
By:
---------------------------------------
Name:
Title:
MEDITRUST CORPORATION
By:
---------------------------------------
Name:
Title:
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