Exhibit 4.1
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of December 29, 1998, by and among
HOST MARRIOTT CORPORATION, a Delaware corporation ("Host Marriott" and, prior to
the Company Merger as defined below, the "Company"), HMC MERGER CORPORATION, a
Maryland corporation ("Merger Sub" and, from and after the Company Merger, the
"Company"), HOST MARRIOTT, L.P., a Delaware limited partnership (the "Operating
Partnership"), and IBJ XXXXXXXX BANK & TRUST COMPANY, as Trustee (the
"Trustee"), under the Indenture, dated as of December 2, 1996 (as supplemented
and amended from time to time, the "Indenture"), between the Company and the
Trustee.
RECITALS
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WHEREAS, Host Marriott issued under the Indenture $567,050,000 aggregate
principal amount of 6 3/4 Convertible Subordinated Debentures due December 2,
2026 (the "Debentures");
WHEREAS, on the date hereof, Host Marriott intends to merge with and into
Merger Sub and Merger Sub will be the surviving Person in such merger with the
name Host Marriott Corporation (the "Company Merger") and become the obligor
under the Debentures and the Indenture;
WHEREAS, pursuant to Section 1.5 of that certain Contribution Agreement,
dated as of December 23, 1998, between the Company and the Operating
Partnership, the Operating Partnership has agreed to assume the obligations of
the Company (including the Indenture and the Debentures);
NOW THEREFORE, in consideration of the foregoing and the mutual promises
contained herein, the parties agree as follows:
Section 1. Successor Obligor. In accordance with Article 8 of the
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Indenture, effective upon consummation of the Company Merger, Merger Sub will
succeed to, and be substituted for, and may exercise every right and power of,
Host Marriott under the Indenture with the same effect as if Merger Sub had been
named therein as the obligor, and Merger Sub hereby assumes, effective upon
consummation of the Company Merger, all of the obligations of Host Marriott
pursuant to the Debentures and under the Indenture, including the due and
punctual payment of the principal and interest (including any Additional
Interest) on all the Debentures and the performance of every covenant of the
Indenture on the part of the Company to be performed or observed.
Section 2. Definitions. (a) The following defined terms shall be added
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to Section 1.1 of the Indenture:
"Operating Partnership" means Host Marriott, L.P., a Delaware limited
partnership.
"Operating Partnership Payment Obligations" has the meaning set forth
in Section 10A.1."
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Section 3. Operating Partnership Covenants. A new Article 10A regarding
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additional covenants of the Operating Partnership and the Company shall be added
to the Indenture immediately following Article 10, as follows:
"ARTICLE 10A
ADDITIONAL COVENANTS
Section 10A.1. Operating Partnership Payment Obligations. The
Operating Partnership assumes responsibility for, and agrees to pay, one
hundred percent (100%) of the amount of each payment required to be made by
the Company to Holders of Debentures pursuant to the terms of the Indenture
and the Debentures with respect to the principal of (and premium, if any)
and interest on the Debentures (the "Operating Partnership Payment
Obligations").
Section 10A.2. The Company's Obligations. Notwithstanding the
foregoing assumption by the Operating Partnership, the Company retains
responsibility for all of its obligations under the Indenture and the
Debentures, including, without limitation, the obligation to make payment
of the Operating Partnership Payment Obligations in the event the Operating
Partnership fails to make any such payments in accordance with Section
10A.1. The assumption by the Operating Partnership of the Operating
Partnership Payment Obligations shall not limit or affect the rights of the
Trustee or the Holders of Debentures under Article 5 of the Indenture to
take action against the Company if an Event of Default occurs under the
Indenture.
Section 10A.3. Manner of Payment. The Operating Partnership shall
satisfy the Operating Partnership Payment Obligations on the dates and in
the manner provided in the Indenture with respect to the Company's payment
obligations under the Debentures.
Section 10A.4. Compensation and Reimbursement. The obligations of
the Company under Section 6.7 shall apply to the Operating Partnership with
the same force and effect as such obligations apply to the Company with
respect to the administration of the Indenture with respect to the
Debentures (provided that the Operating Partnership's obligations under
this Section 10A.4 shall not include indemnity payments solely attributable
to a breach or alleged breach by the Company of its obligations under the
Indenture, which payments shall be the sole responsibility of the
Company)."
Section 4. Defaults and Remedies Against the Operating Partnership. A new
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Article 5A regarding remedies against the Operating Partnership shall be added
to the Indenture immediately following Article 5 as follows:
"ARTICLE 5A
REMEDIES AGAINST THE OPERATING PARTNERSHIP
Section 5A.01. Limitation on Action. The rights to and limitations
on action against the Company set forth in Article 5 shall also apply to
any action against the Operating Partnership for the enforcement of the
Operating Partnership Payment
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Obligations; without limiting the generality of the foregoing, the Trustee
shall be permitted to pursue a remedy against the Operating Partnership for
collection of the Operating Partnership Payment Obligations only under such
circumstances as would enable the Trustee under Article 5 to pursue such
remedy against the Company."
Section 5. Miscellaneous. A new Article 1A shall be added to the
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Indenture immediately following Article 1 as follows:
"ARTICLE 1A
MISCELLANEOUS PROVISIONS APPLICABLE
TO THE OPERATING PARTNERSHIP
Section 1A.1 TIA Compliance. If any provision of this Indenture
limits, qualifies or conflicts with another provision which is required to
be included in this Indenture by the TIA, the required provision shall
control.
Section 1A.2. Notices. Copies of any notice that the Company
delivers to, or receives from, the Paying Agent, the Securities Registrar,
the Trustee, or the Holders of Debentures pursuant to the terms of this
Indenture shall, promptly after such notice is delivered or received, be
delivered by the Company to the Operating Partnership. Copies of any
notice that the Trustee is required to deliver to the Company under this
Indenture shall, at the time such notice is delivered to the Company, also
be delivered to the Operating Partnership.
Any notice or communication to the Operating Partnership shall be
delivered to the Operating Partnership in the manner set forth in Section
1.5 of this Indenture. The Operating Partnership's address for any such
notice or communication shall be as follows:
Host Marriott, L.P.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Section 1A.3. Successors and Assigns of the Operating Partnership.
All covenants and agreements in this Indenture shall bind the Operating
Partnership's successors and assigns and inure to the benefit of its
successors and assigns, whether so expressed or not."
Section 6. Defined Terms. All capitalized terms used but not defined
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herein shall have the meaning attributed to such terms under the Indenture.
Section 7. Effect of Recitals. The Trustee shall not responsible in any
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manner whatsoever for or in respect of the recitals contained herein, all of
which recitals are made solely by Merger Sub and the Operating Partnership.
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Section 8. Governing Law; Choice of Forum. THIS AGREEMENT SHALL BE
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GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK
GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULE 327(B). EACH
OF MERGER SUB AND THE OPERATING PARTNERSHIP HEREBY IRREVOCABLY SUBMIT TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK, IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT
OF OR RELATING TO THIS INDENTURE AND THE SECURITIES AND IRREVOCABLY ACCEPTS FOR
ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE AFORESAID COURT. EACH OF MERGER SUB AND THE OPERATING
PARTNERSHIP IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE
LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM, NOTHING HEREIN SHALL EFFECT THE
RIGHT OF THE TRUSTEE OR ANY SECURITY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
MERGER SUB AND THE OPERATING PARTNERSHIP IN ANY OTHER JURISDICTION.
Section 9. Counterparts. The parties may sign any number of copies of
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this First Supplemental Indenture. Each signed copy shall be an original but
all such executed copies together shall represent the same agreement.
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IN WITNESS WHEREOF, the parties hereto have cause this First Supplemental
Indenture to be duly executed, all as of the date first written above.
HOST MARRIOTT CORPORATION
By:
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Name:
Title:
HMC MERGER CORPORATION
By:
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Name:
Title:
HOST MARRIOTT, L.P.
By: HMC REAL ESTATE LLC,
its general partner
By:
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Name:
Title:
IBJ XXXXXXXX BANK & TRUST COMPANY
as Trustee
By:
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Name:
Title:
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