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EXHIBIT 4.4
CAPSTONE CAPITAL CORPORATION
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10 1/2 % CONVERTIBLE SUBORDINATED DEBENTURES DUE 2002
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FIRST SUPPLEMENTAL INDENTURE
Dated as of ______ __, 1998
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Supplementing Indenture dated as of March 30, 1995
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THE BANK OF NEW YORK
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Trustee
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TABLE OF CONTENTS
Page
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ARTICLE ONE
Definitions
SECTION 101. Definition of Terms..................................................................................4
ARTICLE TWO
Representations and Warranties
SECTION 201. Representations of the Company.......................................................................5
SECTION 202. Representations of HR................................................................................5
ARTICLE THREE
Assumption of Obligations
SECTION 301. Assumption by HR of Obligations of the Company under the Debentures and the Indenture................5
SECTION 302. Substitution of HR for the Company...................................................................5
SECTION 303. Substitution of Merger Consideration for Common Stock of Company upon Exercise of Conversion Option..5
ARTICLE FOUR
Successor Trustee and Miscellaneous
SECTION 401. Successor Trustee....................................................................................6
SECTION 402. Counterpart Originals................................................................................7
SECTION 403. Governing Law........................................................................................7
SECTION 404. Notices..............................................................................................7
SECTION 405. Reaffirmation of Indenture...........................................................................7
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FIRST SUPPLEMENTAL INDENTURE, dated as of , 1998 (the "First
Supplemental Indenture"), among CAPSTONE CAPITAL CORPORATION, a Maryland
corporation (the "Company"), HEALTHCARE REALTY TRUST INCORPORATED, a Maryland
corporation ("HR"), and THE BANK OF NEW YORK, a New York banking corporation, as
trustee (the "Trustee").
WHEREAS, the Company has executed and delivered to AmSouth Bank of
Alabama that certain Indenture dated as of March 30, 1995 among the Company and
AmSouth Bank of Alabama, as Trustee (the "Original Indenture", and as amended by
this First Supplemental Indenture being herein referred to as the "Indenture");
and
WHEREAS, on July 1, 1998, The Bank of New York acquired substantially
all the corporate trust business of AmSouth Bank f/k/a AmSouth of Alabama, and
in accordance with Section 7.9 of the Original Indenture replaced and succeeded
AmSouth Bank of Alabama as trustee under the Original Indenture; and
WHEREAS, there have been issued and are now outstanding under the
Indenture $____________ principal amount of 10 1/2% Convertible Subordinated
Debentures due 2002 (the "Debentures"); and
WHEREAS, HR, Healthcare Realty Acquisition I Corporation, a Delaware
corporation ("Buyer") and a wholly owned subsidiary of HR, and the Company have
entered into an Agreement and Plan of Merger, dated as of June 8, 1998 (the
"Merger Agreement"), pursuant to which, among other things, (a) Buyer will merge
into the Company, with the Company being the surviving entity, and (b) HR will
issue to the stockholders of the Company shares of common stock of HR in
exchange for shares of common stock of the Company and shares of preferred stock
of HR in exchange for shares of preferred stock of the Company; and
WHEREAS, a condition to the consummation of the transactions
contemplated by the Merger Agreement is HR assumption of all of the indebtedness
and other obligations of the Company in connection with the Debentures and HR
substitution for the Company under the Indenture; and
WHEREAS, Section 5. l(a) of the Indenture provides that the Company may
not consolidate with or merge with or into any other person, or directly or
indirectly, sell, lease, assign, transfer or convey or otherwise dispose of all
or substantially all of its assets to another person, unless, among other
things, (a) either (i) the Company shall be the continuing person, or (ii) the
person formed by such consolidation or into which the Company is merged or to
which all or substantially all of the properties and assets of the Company are
transferred shall be a corporation or partnership organized and validly existing
under the laws of the United States, any state thereof or the District of
Columbia, and shall expressly assume, by an indenture supplemental, all
obligations of the Company under the
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Debentures and the Indenture, and (b) immediately after such transaction no
Default or Event of Default exists; and
WHEREAS, Section 13.10(a) of the Indenture provides, in relevant part,
that in the case of any consolidation of the Company with, or merger of the
Company into any other corporation, or in the case of any merger of another
corporation into the Company (other than a merger which does not result in any
conversion or exchange of shares of common stock of the Company), the
corporation formed by such consolidation or resulting from such merger shall
execute and deliver to the Trustee a supplemental indenture providing (i) that
the holder of each Debenture shall have the right, during the conversion period
specified in the Indenture, to convert the Debenture only into the kind and
amount of securities, cash and other property receivable upon such consolidation
or merger by a holder of the number of shares of common stock of the Company
which such Debenture might have been converted immediately prior to such
consolidation or merger, and (ii) for adjustments for events subsequent to the
effective date of the supplemental indenture as nearly equivalent as may be
practicable to the adjustments provided for in Article XIII of the Indenture;
and
WHEREAS, Section 13.10(b) of the Indenture provides that the Trustee
shall have no responsibility for determining the correctness of any provision in
any supplemental indenture regarding the kind or amount of securities or
property receivable by holders of Debentures upon conversion of Debentures after
any transaction described in Section 13.10(a) of the Indenture.
WHEREAS, the criteria enumerated in Sections 5.01 and 13.10 of the
Indenture have been satisfied to the satisfaction of the Trustee; and
WHEREAS, Section 9.1 of the Indenture provides, in relevant part, that
the Company and the Trustee may enter into indentures supplemental to the
Indenture without the consent of any holder of a Debenture to, among other
things, evidence the succession of another person to the Company and the
assumption by any such successor of the obligations of the Company contained in
the Indenture and the Debentures; and
WHEREAS, all things necessary to make this First Supplemental Indenture
a valid and binding supplemental indenture and agreement according to its terms
have been done;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company, HR and the Trustee covenant and agree as follows:
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ARTICLE ONE
DEFINITIONS
SECTION 101. DEFINITION OF TERMS.
Unless the context otherwise requires:
(a) a term defined in the Original Indenture has the same meaning when
used in this First Supplemental Indenture unless otherwise defined herein (in
which case the definition set forth herein shall govern);
(b) a term defined anywhere in this First Supplemental Indenture has
the same meaning throughout;
(c) the singular includes the plural and vice versa; and
(d) headings are for convenience of reference only and do not affect
interpretation.
(e) As used herein, the following terms shall have the meanings set
forth below:
"Company" means Capstone Capital Corporation, a Maryland corporation.
"Common Stock" means the common stock, par value $.01 per share, of HR.
"First Supplemental Indenture" has the meaning set forth in the
recitals above.
"HR" means Healthcare Realty Trust Incorporated, a Maryland
corporation.
"Indenture" means the Original Indenture, as supplemented by this First
Supplemental Indenture, as the same may from time to time be further
supplemented or amended by one or more supplemental indentures thereto.
"Original Indenture" has the meaning set forth in the recitals above.
"Trustee" means the Person named as "Trustee" in the first paragraph of
this First Supplemental Indenture until a successor replaces it in accordance
with the applicable provisions of the Indenture, and thereafter "Trustee" shall
mean such successor.
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ARTICLE TWO
REPRESENTATIONS AND WARRANTIES
SECTION 201. REPRESENTATIONS OF THE COMPANY
The Company hereby represents and warrants that no Default or Event of
Default exists.
SECTION 202. REPRESENTATIONS OF HR
HR hereby represents and warrants that (i) it is a corporation duly
organized and validly existing under the laws of the State of Maryland and (ii)
that immediately after the transaction contemplated by the Merger Agreement, no
Default or Event of Default shall exist.
ARTICLE THREE
ASSUMPTION OF OBLIGATIONS
SECTION 301. ASSUMPTION BY HR OF OBLIGATIONS OF THE COMPANY UNDER THE
DEBENTURES AND THE INDENTURE.
HR xxxxxx assumes and agrees to comply with all of the obligations of
the Company under the Debentures and the Indenture and hereby succeeds to and is
substituted for the Company thereunder.
SECTION 302. SUBSTITUTION OF HR FOR THE COMPANY.
In accordance with Section 5.1 of the Indenture, HR hereby succeeds to,
and is substituted for, the Company under the Debentures and the Indenture, and
from and after the date hereof, (a) the provisions of the Indenture and the
Debentures referring to the "Company" shall refer instead to HR and not to the
Company, (b) HR may exercise every right and power of the Company under the
Debentures and the Indenture with the same effect as if HR had been named as the
Company.
SECTION 303. SUBSTITUTION OF MERGER CONSIDERATION FOR COMMON STOCK OF
COMPANY UPON EXERCISE OF CONVERSION OPTION.
Section 13.1 of the Indenture is hereby deleted in its entirety and
substituted in lieu thereof is the following:
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"Subject to the provision of Section 14 of the Debentures and
Section 13.13 hereof, the Holder of any such Debenture or Debentures
shall have the right, at his option, at any time after ____________,
1998 and before the close of business on April 1, 2002 (except that,
with respect to any Debenture or portion of a Debenture which shall be
called for redemption, such right shall terminate, at the close of
business on the last Business Day prior to the date fixed for
redemption of such Debenture or portion of a Debenture unless the
Company shall default in payment due upon redemption thereof), to
convert, subject to the terms and provisions of this Article XIII, the
principal of any such Debenture or Debentures or any portion thereof
which is $1,000 principal amount or an integral multiple thereof into
shares of Common Stock, initially at the conversion price per share of
$18.9305; or, in case an adjustment of such price has taken place
pursuant to the provisions of Section 13.4 hereof, then at the price as
last adjusted (such price or adjusted price being referred to herein as
the "conversion price"), upon surrender of the Debenture or Debentures,
the principal of which is so to be converted, accompanied by written
notice of conversion duly executed, to the Company, at any time during
usual business hours at the office or agency maintained by it for such
purpose, and, if so required by the Conversion Agent or Registrar,
accompanied by a written instrument or instruments of transfer in form
satisfactory to the Conversion Agent or Registrar duly executed by the
Holder or his duly authorized representative in writing. For
convenience, the conversion of any portion of the principal of any
Debenture or Debentures into Common Stock is hereinafter sometimes
referred to as the conversion of such Debenture or Debentures."
Furthermore, any references in the Indenture or the Debentures to
"Common Stock" shall be deemed to refer to the Common Stock of HR.
ARTICLE FOUR
SUCCESSOR TRUSTEE AND MISCELLANEOUS
SECTION 401. SUCCESSOR TRUSTEE.
In accordance with Section 7.9 of the Original Indenture, The Bank of
New York became the successor Trustee under the Indenture on July 1, 1998. The
Bank of New York hereby accepts the trust imposed upon it by the Indenture and
covenants and agrees to perform the same as expressed in the Indenture. The Bank
of New York hereby succeeds to and is substituted as Trustee under the
Indenture.
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SECTION 402. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this First Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 403. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO
CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE, THE INDENTURE AND THE DEBENTURES.
SECTION 404. NOTICES.
In accordance with Section 14.2 of the Indenture, the address for
notice to HR and the Trustee shall be as follows: If to HR:
Healthcare Realty Trust Incorporated
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx X. Xxxx
Facsimile: (000) 000-0000
If to Trustee:
The Bank of New York
AmSouth/Xxxxxxx Plaza
0000 Xxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attention: Corporate Trust Administrator
Facsimile: (000) 000-0000
SECTION 405. REAFFIRMATION OF INDENTURE.
Except as supplemented by this First Supplemental Indenture, the
Original Indenture is in all respects ratified and confirmed, and the Original
Indenture as supplemented by this First Supplemental Indenture shall be read,
taken and construed as one and the same instrument so that all of the rights,
remedies, terms and conditions, covenants and agreements of the Original
Indenture, as amended, shall apply and remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
CAPSTONE CAPITAL
CORPORATION
By:
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Name:
Title:
Attest:
By:
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Name:
Title:
HEALTHCARE REALTY
TRUST INCORPORATED
By:
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Name:
Title:
Attest:
By:
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Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By: The Bank of New York Trust
Company of Florida, N.A., as
Agent
By:
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Name:
Title:
Attest:
By:
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Name:
Title:
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STATE OF ALABAMA )
)
COUNTY OF JEFFERSON)
I, the undersigned, a Notary Public in and for said County in said
State, do hereby certify that ________________________________, whose name as
_________________of Capstone Capital Corporation, a Maryland corporation, is
signed to the foregoing instrument, and who is known to me, and known to be such
officer, acknowledged before me on this day that, being informed of the contents
of said instrument, (s)he, as such officer and with full authority, executed the
same voluntarily for and as the act of said corporation.
Given under my hand and official seal this the ________ day of
_____________, 1998.
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Notary Public
My Commission expires:
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STATE OF TENNESSEE)
)
COUNTY OF ________)
I, the undersigned, a Notary Public in and for said County in said
State, do hereby certify that __________________________________, whose name as
_____________________of Healthcare Realty Trust Incorporated, a Maryland
corporation, is signed to the foregoing instrument, and who is known to me, and
known to be such officer, acknowledged before me on this day that, being
informed of the contents of said instrument, (s)he, as such officer and with
full authority, executed the same voluntarily for and as the act of said
corporation.
Given under my hand and official seal this the _______ day of
_____________, 1998.
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Notary Public
My Commission expires:
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STATE OF __________________________ )
)
COUNTY OF _________________________ )
I, the undersigned, a Notary Public in and for said County in said
State, do hereby certify that , whose name as of The Bank of New York Trust
Company of Florida, N.A., as agent of The Bank of New York, a New York banking
corporation, is signed to the foregoing instrument, and who is known to me, and
known to be such officer, acknowledged before me on this day that being informed
of the contents of said instrument, (s)he, as such officer and with full
authority, executed the same voluntarily for and as the act of said national
association for and as the act of said banking corporation.
Given under my hand and official seal this the _______ day of
_____________, 1998.
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Notary Public
My Commission expires:
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