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EXHIBIT 4.7
CAPSTONE CAPITAL CORPORATION
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6.55% CONVERTIBLE SUBORDINATED DEBENTURES DUE 2002
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SECOND SUPPLEMENTAL INDENTURE
Dated as of __________, 1998
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SUPPLEMENTING INDENTURE DATED AS OF MARCH 14, 1997
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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...................................................................3
ARTICLE TWO
Representations and Warranties
SECTION 201. Representations of the Company........................................................4
SECTION 202. Representations of HR.................................................................4
ARTICLE THREE
Assumption of Obligations
SECTION 301. Assumption by HR of Obligations of the Company under the Debentures
and the indenture................................................................4
SECTION 302. Substitution of HR for the Company....................................................4
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.....................................................................5
SECTION 402. Counterpart Originals.................................................................5
SECTION 403. Governing Law.........................................................................5
SECTION 404. Notices...............................................................................5
SECTION 405. Reaffirmation of Indenture............................................................6
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SECOND SUPPLEMENTAL INDENTURE, dated as of _______________, 1998 (the
"Second 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 14, l997, among the Company
and AmSouth Bank of Alabama, as Trustee (the "Original Indenture"), as amended
by that certain First Supplemental Indenture dated as of March 14, 1997 (the
"First Supplemental Indenture") (the Original Indenture as amended by the First
Supplemental Indenture and as amended by this Second 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 Bank of Alabama,
and in accordance with Section 612 of the Original Indenture succeeded AmSouth
Bank of Alabama as trustee under the Indenture; and
WHEREAS, there have been issued and are now outstanding under the
Indenture $ principal amount of 6.55 %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 Hit's assumption of all of the
indebtedness and other obligations of the Company in connection with the
Debentures and Hit's substitution for the Company under the Indenture; and
WHEREAS, Section 801 of the Original Indenture provides, in relevant
part, that the Company may not consolidate with or merge into any other person,
or permit any person to consolidate with or merge into the Company unless, among
other things, (i) the person formed by such consolidation or the person which
acquires by conveyance or transfer the property or assets of the Company is a
corporation, partnership or trust organized and validly existing under the laws
of the United States of America, any state thereof or the District of Columbia
and said
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entity expressly assumes, by supplemental indenture, the due and punctual
payment of the principal of and any premium and interest on the Debentures and
the performance or observance of every covenant of the Indenture on the part of
the Company and shall have provided for conversion rights in accordance with
Section 1411 of the Indenture with respect to the Debentures, and (ii)
immediately after such transaction no Default or Event of Default exists; and
WHEREAS, Section 1411 of the Original Indenture provides, in relevant
part, that in the case of any consolidation of the Company with, or merger of
the Company into any other person, or in the case of any merger of another
person into the Company (other than a merger which does not result in any
conversion or exchange of shares of common stock of the Company) (i) the holder
of each Debenture shall have the right, during the conversion period specified
in the Original 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
into which such Debenture might have been converted immediately prior to such
consolidation or merger, and (ii) that the person formed by such consolidation
or merger or which acquires such assets, as the case may be, executes a
supplemental indenture pursuant to which such person assumes the obligation to
deliver to the holder of such Debentures the security, cash and other security
described in (i) above, and such supplemental indenture provides 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 Fourteen of the Original Indenture; and
WHEREAS, Section 1412 of the Original Indenture provides that neither
the Trustee nor any conversion agent has a responsibility to any holder of
Debentures to determine whether any facts exist which require an adjustment of
the conversion price, or the nature of any such adjustment or the method
employed to make such adjustment, and provides that neither the Trustee nor any
conversion agent shall be accountable with respect to validity or value (or the
kind or amount) of any securities or property which may at any time be issued or
delivered upon the conversion of the Debentures; and
WHEREAS, the criteria enumerated in Sections 801 and 1411 of the
Original Indenture have been satisfied to the satisfaction of the Trustee; and
WHEREAS, Section 901 of the Original 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 covenants of the Company contained in
the Indenture and the Debentures; and
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WHEREAS, all things necessary to make this Second 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:
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 Second Supplemental Indenture unless otherwise defined herein (in
which case the definition set forth herein shall govern);
(b) a term defined anywhere in this Second 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 the First
Supplemental Indenture and by this Second 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.
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"Second Supplemental Indenture" has the meaning set forth in the
recitals above.
"Trustee" means the Person named as "Trustee" in the first paragraph of
this Second Supplemental Indenture until a successor replaces it in accordance
with the applicable provisions of the Indenture, and thereafter "Trustee" shall
mean such successor.
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 (i) that 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 802 of the Original 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.
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SECTION 303. SUBSTITUTION OF MERGER CONSIDERATION FOR COMMON STOCK OF COMPANY
UPON EXERCISE OF CONVERSION OPTION.
The second paragraph of Section 501 of the First Supplemental Indenture
is hereby deleted in its entirety and substituted in lieu thereof is the
following:
"The rate at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Rate") shall be initially
33.6251 shares of Common Stock for each $1,000 principal amount of
Debentures. The Conversion Rate shall be adjusted in certain instances
as provided in paragraphs (a), (b), (c), (d), (e) and (h) of Section
1504.
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 612 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.
SECTION 402. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Second 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 SECOND SUPPLEMENTAL INDENTURE, THE INDENTURE AND THE DEBENTURES.
SECTION 404. NOTICES.
In accordance with Section 105 of the Original Indenture, the address
for notice to HR and the Trustee shall be as follows:
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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 Second Supplemental Indenture, the
Original Indenture as supplemented by the First Supplemental Indenture is in all
respects ratified and confirmed, and the Original Indenture as supplemented by
the First Supplemental Indenture and by this Second 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 Second
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:
Attest: Title:
By:
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Name:
Title:
HEALTHCARE REALTY TRUST INCORPORATED
By:
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Name:
Attest: Title:
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:
Attest: Title:
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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