EXHIBIT 4.10
SUPPLEMENTAL INDENTURE NO. 7
by and between
HOSPITALITY PROPERTIES TRUST
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee
as of January 24, 2003
SUPPLEMENTAL TO THE INDENTURE DATED AS OF FEBRUARY 25, 1998
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HOSPITALITY PROPERTIES TRUST
6 3/4% Senior Notes due February 15, 2013
This SUPPLEMENTAL INDENTURE NO. 7 (this "Supplemental Indenture") made and
entered into as of January 24, 2003 between HOSPITALITY PROPERTIES TRUST, a
Maryland real estate investment trust (the "Company"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association (and successor to State Street Bank
and Trust Company ("State Street") in its capacity as Trustee), as Trustee (the
"Trustee").
WITNESSETH THAT:
WHEREAS, the Company and State Street have executed and delivered an
Indenture, dated as of February 25, 1998 (the "Indenture"), relating to the
Company's issuance, from time to time, of various series of debt securities; and
WHEREAS, U.S. Bank National Association has acquired and succeeded to
substantially all of the corporate trust business of State Street, and, being
eligible to serve as trustee under the Indenture, has succeeded to State Street
as Trustee under the Indenture; and
WHEREAS, the Company has determined to issue debt securities known as its
6 3/4% Senior Notes due February 15, 2013; and
WHEREAS, the Indenture provides that certain terms and conditions for each
series of debt securities issued by the Company thereunder may be set forth in
an indenture supplemental to the Indenture;
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
ARTICLE 1
DEFINED TERMS
Section 1.1 The following definitions supplement, and, to the extent
inconsistent with, replace the definitions in Section 101 of the Indenture:
"Acquired Debt" means Debt of a Person (i) existing at the time such Person
becomes a Subsidiary or (ii) assumed in connection with the acquisition of
assets from such Person, in each case, other than Debt incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary or such
acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.
"Annual Debt Service" as of any date means the maximum amount which is
expensed in any 12-month period for interest on Debt of the Company and its
Subsidiaries.
"Business Day" means any day other than a Saturday or Sunday or a day on
which banking institutions in the City of New York or in the city in which the
Corporate Trust Office of the Trustee is located, are required or authorized to
close.
"Capital Stock" means, with respect to any Person, any capital stock
(including preferred stock), shares, interests, participation or other ownership
interests (however designated) of such Person and any rights (other than debt
securities convertible into or exchangeable for capital stock), warrants or
options to purchase any thereof.
"Consolidated Income Available for Debt Service" for any period means
Earnings from Operations of the Company and its Subsidiaries plus amounts which
have been deducted, and minus amounts which have been added, for the following
(without duplication): (i) interest on Debt of the Company and its Subsidiaries,
(ii) cash reserves made by lessees as required by the Company's leases for
periodic replacement and refurbishment of the Company's assets, (iii) provision
for taxes of the Company and its Subsidiaries based on income, (iv) amortization
of debt discount and deferred financing costs, (v) provisions for gains and
losses on properties and property depreciation and amortization, (vi) the effect
of any noncash charge resulting from a change in accounting principles in
determining Earnings from Operations for such period and (vii) amortization of
deferred charges.
"Debt" of the Company or any Subsidiary means, without duplication, any
indebtedness of the Company or any Subsidiary, whether or not contingent, in
respect of (i) borrowed money or evidenced by bonds, notes, debentures or
similar instruments, (ii) indebtedness for borrowed money secured by any
Encumbrance existing on property owned by the Company or any Subsidiary, to the
extent of the lesser of (x) the amount of indebtedness so secured and (y) the
fair market value of the property subject to such Encumbrance, (iii) the
reimbursement obligations, contingent or otherwise, in connection with any
letters of credit actually issued (other than letters of credit issued to
provide credit enhancement or support with respect to other indebtedness of the
Company or any Subsidiary otherwise reflected as Debt hereunder) or amounts
representing the balance deferred and unpaid of the purchase price of any
property or services, except any such balance that constitutes an accrued
expense or trade payable, or all conditional sale obligations or obligations
under any title retention agreement, (iv) the principal amount of all
obligations of the Company or any Subsidiary with respect to redemption,
repayment or other repurchase of any Disqualified Stock, or (v) any lease of
property by the Company or any Subsidiary as lessee which is reflected on the
Company's consolidated balance sheet as a capitalized lease in accordance with
GAAP, to the extent, in the case of items of indebtedness under (i) through
(iii) above, that any such items (other than letters of credit) would appear as
a liability on the Company's consolidated balance sheet in accordance with GAAP,
and also includes, to the extent not otherwise included, any obligation by the
Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or
otherwise (other than for purposes of collection in the ordinary course of
business), Debt of another Person (other than the Company or any Subsidiary) (it
being understood that Debt shall be deemed to be incurred by the Company or any
Subsidiary whenever the Company or such Subsidiary shall create, assume,
guarantee or otherwise become liable in respect thereof).
"Disqualified Stock" means, with respect to any Person, any Capital Stock
of such Person which by the terms of such Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or
exercisable), upon the happening of any event or otherwise (i) matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
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otherwise (other than Capital Stock which is redeemable solely in exchange for
common stock or shares), (ii) is convertible into or exchangeable or exercisable
for Debt or Disqualified Stock, or (iii) is redeemable at the option of the
holder thereof, in whole or in part (other than Capital Stock which is
redeemable solely in exchange for common stock or shares), in each case on or
prior to the stated maturity of the Notes.
"Earnings from Operations" for any period means net earnings excluding
gains and losses on sales of investments, extraordinary items, gains and losses
from early extinguishment of debt and property valuation losses, as reflected in
the financial statements of the Company and its Subsidiaries for such period,
determined on a consolidated basis in accordance with GAAP.
"Encumbrance" means any mortgage, lien, charge, pledge or security interest
of any kind.
"Make-Whole Amount" means, in connection with any optional redemption or
accelerated payment of any Notes prior to August 15, 2012, the excess, if any,
of (i) the aggregate present value as of the date of such redemption or
accelerated payment of each dollar of principal being redeemed or paid and the
amount of interest (exclusive of interest accrued to the date of redemption or
accelerated payment) that would have been payable in respect of such dollar if
such redemption or accelerated payment had been made on August 15, 2012,
determined by discounting, on a semiannual basis, such principal and interest at
the Reinvestment Rate (determined on the third Business Day preceding the date
such notice of redemption is given or declaration of acceleration is made) from
the respective dates on which such principal and interest would have been
payable if such redemption or accelerated payment had been made on August 15,
2012, over (ii) the aggregate principal amount of the Notes being redeemed or
paid. In the case of any redemption or accelerated payment of notes on or after
August 15, 2012, the Make-Whole Amount means zero. For purposes of this
Supplemental Indenture and the Notes, references in the Indenture to the payment
of the principal (and premium, if any) and interest on the Notes shall be deemed
to include the payment of the Make-Whole Amount, if any, due upon redemption
with respect to the Notes. The Make-Whole Amount shall be calculated by the
Company and set forth in an Officer's Certificate delivered to the Trustee, and
the Trustee shall be entitled to rely on said Officer's Certificate.
"Notes" means the Company's 6 3/4% Senior Notes due February 15, 2013,
issued under this Supplemental Indenture and the Indenture, as amended or
supplemented from time to time.
"Reinvestment Rate" means a rate per annum equal to the sum of 0.50% (fifty
one hundredths of one percent) plus the yield on treasury securities at constant
maturity under the heading "Week Ending" published in the Statistical Release
under the caption "Treasury Constant Maturities" for the maturity (rounded to
the nearest month) corresponding to the remaining life to maturity (which, the
case of maturities corresponding to the principal and interest due on the notes
at their maturity, shall be deemed to be August 15, 2012), as of the payment
date of the principal being redeemed or paid. If no maturity exactly corresponds
to such maturity, yields for the two published maturities most closely
corresponding to such maturity shall be calculated pursuant to the immediately
preceding sentence and the Reinvestment Rate shall be interpolated or
extrapolated from such yields on a straight-line basis,
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rounding in each of such relevant periods to the nearest month. For purposes of
calculating the Reinvestment Rate, the most recent Statistical Release published
prior to the date of determination of the Make-Whole Amount shall be used.
"Secured Debt" means Debt secured by any mortgage, lien, charge, pledge or
security interest of any kind.
"Statistical Release" means the statistical release designated "H.15(519)"
or any successor publication which is published weekly by the Federal Reserve
System and which establishes yields on actively traded United States government
securities adjusted to constant maturities or, if such statistical release is
not published at the time of any determination under this Supplemental
Indenture, then any publicly available source of similar market data which shall
be designated by the Company.
"Subsidiary" means any corporation or other entity of which a majority of
(i) the voting power of the voting equity securities or (ii) the outstanding
equity interests of which are owned, directly or indirectly, by the Company or
one or more other Subsidiaries of the Company. For the purposes of this
definition, "voting equity securities" means equity securities having voting
power for the election of directors, whether at all times or only so long as no
senior class of security has such voting power by reason of any contingency.
"Total Assets" as of any date means the sum of (i) the Undepreciated Real
Estate Assets and (ii) all other assets of the Company and its Subsidiaries
determined in accordance with GAAP (but excluding accounts receivable and
intangibles).
"Total Unencumbered Assets" means the sum of (i) those Undepreciated Real
Estate Assets not subject to an Encumbrance for borrowed money and (ii) all
other assets of the Company and its Subsidiaries not subject to an Encumbrance
for borrowed money determined in accordance with GAAP (but excluding accounts
receivable and intangibles).
"Undepreciated Real Estate Assets" as of any date means the cost (original
cost plus capital improvements) of real estate assets of the Company and its
Subsidiaries on such date, before depreciation and amortization determined on a
consolidated basis in accordance with GAAP.
"Unsecured Debt" means Debt which is not secured by any of the properties
of the Company or any Subsidiary.
ARTICLE 2
TERMS OF THE NOTES
Section 2.1 Pursuant to Section 301 of the Indenture, the Notes shall have
the following terms and conditions:
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(a) Title; Limitation on Aggregate Principal Amount; Form of Notes. The
Notes shall be Registered Securities under the Indenture and shall be known as
the Company's "6 3/4% Senior Notes due February 15, 2013." The aggregate
principal amount of Notes which may be authenticated and delivered under this
Indenture Supplement shall not, except as permitted by the provisions of the
Indenture, exceed $175,000,000 provided that the Company may, without the
consent of the holders of the Notes, reopen this series and issue additional
Notes under the Indenture and this Indenture Supplement in addition to the
$175,000,000 of Notes authorized as of the date hereof. The Notes (together with
the Trustee's certificate of authentication) shall be substantially in the form
of Exhibit A hereto, which is hereby incorporated in and made a part of this
Supplemental Indenture.
The Notes will be issued in the form of one or more registered global
securities without coupons ("Global Notes") which will be deposited with, or on
behalf of, The Depository Trust Company ("DTC"), and registered in the name of
DTC's nominee, Cede & Co. Except under the circumstance described below, the
Notes will not be issuable in definitive form. Unless and until it is exchanged
in whole or in part for the individual notes represented thereby, a Global Note
may not be transferred except as a whole by DTC to a nominee of DTC or by a
nominee of DTC to DTC or another nominee of DTC or by DTC or any nominee of DTC
to a successor depositary or any nominee of such successor.
So long as DTC or its nominee is the registered owner of a Global Note, DTC
or such nominee, as the case may be, will be considered the sole owner or holder
of the Notes represented by such Global Note for all purposes under this
Supplemental Indenture. Except as described below, owners of beneficial interest
in Notes evidenced by a Global Note will not be entitled to have any of the
individual Notes represented by such Global Note registered in their names, will
not receive or be entitled to receive physical delivery of any such Notes in
definitive form and will not be considered the owners or holders thereof under
the Indenture or this Supplemental Indenture.
If DTC is at any time unwilling, unable or ineligible to continue as
depositary and a successor depositary is not appointed by the Company within 90
days, the Company will issue individual Notes in exchange for the Global Note or
Global Notes representing such Notes. In addition, the Company may at any time
and in its sole discretion, subject to certain limitations set forth in the
Indenture, determine not to have any of such Notes represented by one or more
Global Notes and, in such event, will issue individual Notes in exchange for the
Global Note or Global Notes representing the Notes. Individual Notes so issued
will be issued in denominations of $1,000 and integral multiples thereof.
(b) Interest and Interest Rate. The Notes will bear interest at a rate
of 6 3/4% per annum, from January 24, 2003 (or, in the case of Notes issued upon
the reopening of this series of Notes, from the date designated by the Company
in connection with such reopening) or from the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for, payable
semi-annually in arrears on February 15 and August 15 of each year, commencing
August 15, 2003 or if such day is not a Business Day (as defined in the
Indenture), on the next succeeding Business Day (each of which shall be an
"Interest Payment Date"), to the Persons in
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whose names the Notes are registered in the Security Register at the close of
business on the day falling 14 calendar days immediately preceding the
applicable interest payment date (whether or not a Business Day), as the case
may be (each, a "Regular Record Date").
(c) Principal Repayment; Currency. The stated maturity of the Notes is
February 15, 2013, provided, however, the Notes may be earlier redeemed at the
option of the Company as provided in paragraph (d) below. The principal of each
Note payable on its maturity date shall be paid against presentation and
surrender thereof at the Corporate Trust Office of the Trustee, located
initially at Xxx Xxxxxx xx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, in such coin
or currency of the United States of America as at the time of payment is legal
tender for the payment of public or private debts. The Company will not pay
Additional Amounts (as defined in the Indenture) on the Notes.
(d) Redemption at the Option of the Company. The Notes will be subject
to redemption at any time at the option of the Company, in whole or in part,
upon not less than 30 nor more than 60 days' notice to each Holder of Notes to
be redeemed at its address appearing in the Security Register, at a price equal
to the sum of (i) the principal amount of the Notes being redeemed, plus accrued
and unpaid interest to but excluding the applicable Redemption Date, plus (ii)
the Make-Whole Amount, if any. If the notes are redeemed on or after August 15,
2012, the redemption price will not include the Make-Whole Amount.
(e) Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by
any standard form of telecommunication. Notices to the Company shall be directed
to it at 000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: President;
notices to the Trustee shall be directed to it at Xxx Xxxxxx xx Xxxxxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Corporate Trust Department, Re:
Hospitality Properties Trust 6 3/4% Senior Notes due February 15, 2013, or as to
either party, at such other address as shall be designated by such party in a
written notice to the other party.
(f) Global Note Legend. Each Global Note shall bear the following legend
on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT 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.
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(g) Applicability of Discharge, Defeasance and Covenant Defeasance
Provisions. The Discharge, Defeasance and Covenant Defeasance provisions in
Article Fourteen of the Indenture will apply to the Notes.
ARTICLE 3
ADDITIONAL COVENANTS
Section 3.1 In addition to the covenants of the Company set forth in
Article Ten of the Indenture, for the benefit of the holders of the Notes:
(a) Limitations on Incurrence of Debt.
(i) The Company will not, and will not permit any Subsidiary to, incur
any Debt if, immediately after giving effect to the incurrence of such
additional Debt and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Debt of the Company and its Subsidiaries on
a consolidated basis determined in accordance with GAAP is greater than 60% of
the sum ("Adjusted Total Assets") of (without duplication) (i) the Total Assets
of the Company and its Subsidiaries as of the end of the calendar quarter
covered in the Company's Annual Report on Form 10-K, or the Quarterly Report on
Form 10-Q, as the case may be, most recently filed with the Securities and
Exchange Commission (or, if such filing is not permitted under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), with the Trustee) prior
to the incurrence of such additional Debt and (ii) the purchase price of any
real estate assets or mortgages receivable acquired, and the amount of any
securities offering proceeds received (to the extent that such proceeds were not
used to acquire real estate assets or mortgages receivable or used to reduce
Debt), by the Company or any Subsidiary since the end of such calendar quarter,
including those proceeds obtained in connection with the incurrence of such
additional Debt.
(ii) In addition to the foregoing limitations on the incurrence of Debt,
the Company will not, and will not permit any Subsidiary to, incur any Secured
Debt if, immediately after giving effect to the incurrence of such additional
Secured Debt and the application of the proceeds thereof, the aggregate
principal amount of all outstanding Secured Debt of the Company and its
Subsidiaries on a consolidated basis is greater than 40% of Adjusted Total
Assets.
(iii) In addition to the foregoing limitations on the incurrence of Debt,
the Company will not, and will not permit any Subsidiary to, incur any Debt if
the ratio of Consolidated Income Available for Debt Service to the Annual Debt
Service for the four consecutive fiscal quarters most recently ended prior to
the date on which such additional Debt is to be incurred shall have been less
than 1.5x, on a pro forma basis after giving effect thereto and to the
application of the proceeds therefrom, and calculated on the assumption that (i)
such Debt and any other Debt incurred by the Company and its Subsidiaries since
the first day of such four-quarter period and the application of the proceeds
therefrom, including to refinance other Debt, had occurred at the beginning of
such period; (ii) the repayment or retirement of any other Debt by the Company
and its Subsidiaries since the first date of such four-quarter period had been
repaid or retired at the
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beginning of such period (except that, in making such computation, the amount of
Debt under any revolving credit facility shall be computed based upon the
average daily balance of such Debt during such period); (iii) in the case of
Acquired Debt or Debt incurred in connection with any acquisition since the
first day of such four-quarter period, the related acquisition had occurred as
of the first day of such period with appropriate adjustments with respect to
such acquisition being included in such pro forma calculation; and (iv) in the
case of any acquisition or disposition by the Company or its Subsidiaries of any
asset or group of assets since the first day of such four-quarter period,
whether by merger, stock purchase or sale, or asset purchase or sale, such
acquisition or disposition or any related repayment of Debt had occurred as of
the first day of such period with the appropriate adjustments with respect to
such acquisition or disposition being included in such pro forma calculation. If
the Debt giving rise to the need to make the foregoing calculation or any other
Debt incurred after the first day of the relevant four-quarter period bears
interest at a floating rate then, for purposes of calculating the Annual Debt
Service, the interest rate on such Debt shall be computed on a pro forma basis
as if the average interest rate which would have been in effect during the
entire such four-quarter period had been the applicable rate for the entire such
period.
(b) Maintenance of Total Unencumbered Assets. The Company and its
Subsidiaries will maintain at all times Total Unencumbered Assets of not less
than 200% of the aggregate outstanding principal amount of the Unsecured Debt of
the Company and its Subsidiaries on a consolidated basis.
ARTICLE 4
ADDITIONAL EVENTS OF DEFAULT
Section 4.1 For purposes of this Supplemental Indenture and the Notes, in
addition to the Events of Default set forth in Section 501 of the Indenture, it
shall also constitute an "Event of Default" if a default under any bond,
debenture, note or other evidence of indebtedness of the Company (including a
default with respect to any other series of securities), or under any mortgage,
indenture or other instrument of the Company under which there may be issued or
by which there may be secured or evidenced any indebtedness for money borrowed
by the Company (or by any Subsidiary, the repayment of which the Company has
guaranteed or for which the Company is directly responsible or liable as obligor
or guarantor) having an aggregate principal amount outstanding of at least
$20,000,000, whether such indebtedness now exists or shall hereafter be incurred
or created, which default shall have resulted in such indebtedness becoming or
being declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been discharged or
such acceleration having been rescinded or annulled within a period of ten days
after there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the outstanding Notes, a written notice
specifying such default and requiring the Company to cause such indebtedness to
be discharged or cause such acceleration to be rescinded or annulled and stating
that such notice is a "Notice of Default" hereunder.
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Section 4.2 Notwithstanding any provisions to the contrary in the
Indenture, upon any acceleration of the Notes under Section 502 of the
Indenture, the amount immediately due and payable in respect of the Notes shall
equal the Outstanding principal amount thereof, plus accrued interest, plus, if
such acceleration occurs prior to August 15, 2012, the Make-Whole Amount.
ARTICLE 5
EFFECTIVENESS
This Supplemental Indenture shall be effective for all purposes as of the
date and time this Supplemental Indenture has been executed and delivered by the
Company and the Trustee in accordance with Article Nine of the Indenture. As
supplemented hereby, the Indenture is hereby confirmed as being in full force
and effect.
ARTICLE 6
MISCELLANEOUS
Section 6.1 In the event any provision of this Supplemental Indenture shall
be held invalid or unenforceable by any court of competent jurisdiction, such
holding shall not invalidate or render unenforceable any other provision hereof
or any provision of the Indenture.
Section 6.2 To the extent that any terms of this Supplemental Indenture or
the Notes are inconsistent with the terms of the Indenture, the terms of this
Supplemental Indenture or the Notes shall govern and supersede such inconsistent
terms.
Section 6.3 This Supplemental Indenture shall be governed by and construed
in accordance with the laws of The Commonwealth of Massachusetts.
Section 6.4 This Supplemental Indenture may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same instrument.
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IN WITNESS WHEREOF, the Company and the Trustee have caused this
Supplemental Indenture to be executed as an instrument under seal in their
respective corporate names as of the date first above written.
HOSPITALITY PROPERTIES TRUST
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: President
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: Vice President
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EXHIBIT A
(Face of Note)
6 3/4% Senior Note due February 15, 2013
No. $__________
HOSPITALITY PROPERTIES TRUST
promises to pay to _______________________________________ or registered
assigns, the principal sum of __________ ($_______) on February 15, 2013,
subject to the terms set forth on the reverse of this Note and the terms of the
Indenture referred to therein.
Interest Payment Dates: February 15 and August 15, commencing August 15, 2003.
Record Dates: the day falling 14 calendar days prior to any Interest Payment
Date.
CUSIP No: _____________
HOSPITALITY PROPERTIES TRUST
By:
------------------------------
Name:
Title:
Dated:
This is one of the Notes referred to in the within-mentioned Indenture:
U.S. BANK NATIONAL ASSOCIATION, as Trustee
By:
------------------------------
Authorized Officer
A-1
[THE FOLLOWING CONSTITUTES THE REVERSE OF THE SECURITY]
HOSPITALITY PROPERTIES TRUST
6 3/4% Senior Note due February 15, 2013
Capitalized terms used herein have the meanings assigned to them in the
Indenture (as defined below) unless otherwise indicated.
1. Interest. Hospitality Properties Trust, a Maryland real estate
investment trust (the "Company"), promises to pay interest on the principal
amount of this Note at the rate and in the manner specified below.
The Company shall pay in cash interest on the principal amount of this Note
at the rate per annum of 6 3/4%. The Company will pay interest semi-annually in
arrears on February 15 and August 15 of each year, commencing on August 15, 2003
or if any such day is not a Business Day (as defined in the Indenture), on the
next succeeding Business Day (each an "Interest Payment Date"), to Holders of
record on the day falling 14 calendar days immediately preceding such Interest
Payment Date (whether or not a Business Day).
Interest will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Interest shall accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from the date of the
original issuance of the Notes.
2. Method of Payment. The Company will pay interest on the Notes
(except defaulted interest) to the Persons who are registered Holders of Notes
at the close of business on the record date next preceding the Interest Payment
Date, even if such Notes are canceled after such record date and on or before
such Interest Payment Date. The Company will pay principal and interest in money
of the United States that at the time of payment is legal tender for payment of
public and private debts. The Company, however, may pay principal, premium, if
any, and interest by check payable in such money. It may mail an interest check
to a Holder's registered address.
3. Indenture. The Company issued the Notes under an Indenture dated as
of February 25, 1998 and Supplemental Indenture No. 7 dated as of January 24,
2003 (collectively, the "Indenture") between the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
secs. 77aaa-77bbbb) as in effect on the date of the Indenture. The Notes are
subject to all such terms, and Holders of the Notes are referred to the
Indenture and such Act for a statement of such terms. The terms of the Indenture
shall govern any inconsistencies between the Indenture and the Notes. The Notes
are unsecured general obligations of the Company initially issued in an
aggregate principal amount of $175,000,000.
4. Optional Redemption. The Notes will be subject to redemption at any
time at the option of the Company, in whole or in part, upon not less than 30
nor more than 60 days' notice, at a redemption price equal to the sum of (i) the
principal amount of the Notes being redeemed,
A-2
plus accrued and unpaid interest to but excluding the applicable Redemption Date
and (ii) the Make-Whole Amount.
As used herein the term "Make-Whole Amount" means, in connection with any
optional redemption or accelerated payment of any notes prior to August 15,
2012, the excess, if any, of (i) the aggregate present value as of the date of
such redemption or accelerated payment of each dollar of principal being
redeemed or paid and the amount of interest (exclusive of interest accrued to
the date of redemption or accelerated payment) that would have been payable in
respect of such dollar if such redemption or accelerated payment had been made
on August 15, 2012, determined by discounting, on a semiannual basis, such
principal and interest at the Reinvestment Rate (determined on the third
Business Day preceding the date such notice of redemption is given or
declaration of acceleration is made) from the respective dates on which such
principal and interest would have been payable if such redemption or accelerated
payment had been made on August 15, 2012, over (ii) the aggregate principal
amount of the Notes being redeemed or paid. In the case of any redemption or
accelerated payment of notes on or after August 15, 2012, the Make-Whole Amount
means zero. For purposes of the Indenture and the Notes, references in the
Indenture to the payment of the principal (and premium, if any) and interest on
the Notes shall be deemed to include the payment of the Make-Whole Amount, if
any, due upon redemption with respect to the Notes. The Make-Whole Amount shall
be calculated by the Company and set forth in an Officer's Certificate delivered
to the Trustee, and the Trustee shall be entitled to rely on said Officer's
Certificate.
As used herein the term "Reinvestment Rate" means a rate per annum equal to
the sum of 0.50% (fifty one hundredths of one percent) plus the yield on
treasury securities at constant maturity under the heading "Week Ending"
published in the Statistical Release (as defined herein) under the caption
"Treasury Constant Maturities" for the maturity (rounded to the nearest month)
corresponding to the remaining life to maturity (which, in the case of
maturities corresponding to the principal and interest due on the notes at their
maturity, shall be deemed to be August 15, 2012), as of the payment date of the
principal being redeemed or paid. If no maturity exactly corresponds to such
maturity, yields for the two published maturities most closely corresponding to
such maturity shall be calculated pursuant to the immediately preceding sentence
and the Reinvestment Rate shall be interpolated or extrapolated from such yields
on a straight-line basis, rounding in each of such relevant periods to the
nearest month. For purposes of calculating the Reinvestment Rate, the most
recent Statistical Release published prior to the date of determination of the
Make-Whole Amount shall be used.
As used herein the term "Statistical Release" means the statistical release
designated "H.15(519)" or any successor publication which is published weekly by
the Federal Reserve System and which establishes yields on actively traded
United States government securities adjusted to constant maturities or, if such
statistical release is not published at the time of any determination under the
Supplemental Indenture, then any publicly available source of similar market
data which shall be designated by the Company.
5. Mandatory Redemption. The Company shall not be required to make
sinking fund or redemption payments with respect to the Notes.
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6. Notice of Redemption. Notice of redemption shall be mailed at least
30 days but not more than 60 days before the Redemption Date to each Holder of
Notes to be redeemed at its registered address. Notes may be redeemed in part
but only in whole multiples of $1,000, unless all of the Notes held by a Holder
are to be redeemed. On and after the redemption date, interest ceases to accrue
on Notes or portions of them called for redemption.
7. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000 in
excess thereof. The transfer of Notes may be registered and Notes may be
exchanged as provided in the Indenture. The Security Registrar and the Trustee
may require a Holder, among other things, to furnish appropriate endorsements
and transfer documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Security Registrar need not exchange or register
the transfer of any Note or portion of a Note selected for redemption. Also, it
need not exchange or register the transfer of any Notes for a period of 15 days
before the mailing of a notice of redemption of Notes, or during the period
between a record date and the corresponding Interest Payment Date.
8. Defaults and Remedies. In case an Event of Default (as defined in
the Indenture) with respect to the Notes shall have occurred and be continuing,
the principal hereof may be declared, and upon such declaration shall become,
due and payable, in the manner, with the effect and subject to the provisions
provided in the Indenture.
9. Actions of Holders. The Indenture contains provisions permitting the
holders of not less than a majority of the aggregate principal amount of the
outstanding Notes, subject to certain exceptions as provided in the Indenture,
on behalf of the holders of all such Notes at a meeting duly called and held as
provided in the Indenture, to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
the Indenture to be made, given or taken by the holders of the Notes, including
without limitation, waiving (a) compliance by the Company with certain
provisions of the Indenture, and (b) certain past defaults under the Indenture
and their consequences. Any resolution passed or decision taken at any meeting
of the holders of the Notes in accordance with the provisions of the Indenture
shall be conclusive and binding upon such holders and upon all future holders of
this Note and other Notes issued upon the registration of transfer hereof or in
exchange heretofore or in lieu hereof.
10. Persons Deemed Owners. The Company, the Trustee, and any agent of
the Company or the Trustee may deem and treat the Person in whose name this Note
is registered on the Security Register as its absolute owner for all purposes.
11. Authentication. This Note shall not be valid until authenticated by
the manual signature of the Trustee or an authenticating agent.
12. Governing Law. THE INTERNAL LAW OF THE COMMONWEALTH OF MASSACHUSETTS
SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THE NOTES.
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13. No Personal Liability. THE DECLARATION OF TRUST OF THE COMPANY,
AMENDED AND RESTATED ON AUGUST 21, 1995, A COPY OF WHICH, TOGETHER WITH ALL
AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED IN THE OFFICE OF THE
DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT
THE NAME "HOSPITALITY PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE
DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND
THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE
HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR
CLAIM AGAINST, THE COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY,
SHALL LOOK ONLY TO THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE
PERFORMANCE OF ANY OBLIGATION.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Request may be made to:
Hospitality Properties Trust
000 Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attention: President
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
[I] [We] assign and transfer this Note to ____________________________________
__________________________________ [Print or type assignee's name, address and
zip code] _________________________ [Insert assignee's soc. sec. or tax I.D.
no.] and irrevocably appoint_____________________________ to transfer this Note
on the books of the Company. The agent may substitute another to act for him.
Date:
--------------
Your Signature:
----------------------------------
[Sign exactly as your name appears
on the face of this Note]
Signature Guarantee:
-----------------------------
[The signature must be guaranteed
by an officer of a participant
in a recognized signature guarantee
program. Notarized or witnessed
signatures are not acceptable.]
