This SUPPLEMENTAL
INDENTURE NO. 12 (this “ Supplemental Indenture
”) made and entered into as of September 28, 2007
between HOSPITALITY PROPERTIES TRUST, a Maryland real estate
investment trust (the “ Company ”), and U.S.
BANK NATIONAL ASSOCIATION, a national banking association, as
Trustee (the “ Trustee ”).
WITNESSETH THAT:
WHEREAS, the
Company and the Trustee are parties to 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;
WHEREAS, the
Company has determined to issue debt securities known as its 6.70%
Senior Notes due 2018; 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
Terms Defined in Indenture . Capitalized terms used
herein and not defined herein have the meanings ascribed to such
terms in the Indenture.
Section
1.2
Supplemental Definitions . 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.
“
Additional Notes ” has the meaning provided in
Section 2.1(b) hereof.
“
Adjusted Total Assets ” has the meaning provided in
clause (i) of Section 3.1(a) hereof.
“ 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.
“ Corporate Trust Office ”
means One Federal Street, 3rd Floor, Boston, Massachusetts
02110, or such other address as may be designated from time to time
by the Trustee by providing written notice to the Company.
“
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).
“
Depositary ” has the meaning provided in
Section 2.1(d) hereof.
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“
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
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.
“
Interest Payment Date ” has the meaning provided in
Section 2.1(e) hereof.
“
Make-Whole Amount ” means, in connection with any
optional redemption or accelerated payment of any Notes prior to
July 15, 2017, 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 July 15, 2017, 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 July 15, 2017, 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 July 15, 2017, 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 6.70% Senior Notes
due 2018, issued under this Supplemental Indenture and the
Indenture, as amended or supplemented from time to time. (For
the avoidance of doubt, the term “Notes” shall include
any Additional Notes so issued.)
“ Regular
Record Date ” has the meaning provided in
Section 2.1(e) hereof.
“
Reinvestment Rate ” means a rate per annum equal to
the sum of 0.35% (thirty-five hundredths of one percent) plus the
yield on treasury securities at constant maturity under
the
3
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, in the case of maturities
corresponding to the principal and interest due on the notes at
their maturity, shall be deemed to be July 15, 2017), 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.
“ 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.
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ARTICLE 2
TERMS OF THE NOTES
Section
2.1
Terms of the Notes . Pursuant to Section 301 of
the Indenture, the Notes shall have the following terms and
conditions:
(a)
Title . The Notes shall be Registered Securities under
the Indenture and shall be known as the Company’s
“6.70% Senior Notes due 2018.”
(b)
Aggregate Principal Amount . The aggregate principal
amount of Notes to be authenticated and delivered under this
Supplemental Indenture shall initially be limited to $350,000,000,
except as otherwise permitted by the provisions of the
Indenture; provided that the Company may from time to time,
without the consent of the Holders of the Notes, increase the
principal amount of the Notes by issuing additional Securities in
the future (the “ Additional Notes ”)
having the same terms and ranking equally and ratably with the
Notes in all respects and with the same CUSIP number as the Notes,
except for the difference in the issue price and interest accrued
prior to the issue date of such Additional Notes, provided that
such Additional Notes constitute part of the same issue as the
Notes for U.S. federal income tax purposes. Any Additional
Notes will be treated as a single series with the Notes under the
Indenture and shall have the same terms as to status, redemption
and otherwise as the Notes, and references herein to the Notes
shall include any Additional Notes.
(c)
Form of Notes . 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. Any of the Notes may have such letters,
numbers or other marks of identification and such notations,
legends, endorsements or changes as the officers executing the same
may approve (execution thereof to be conclusive evidence of
such approval) and as are not inconsistent with the provisions of
the Indenture, or as may be required by the Depositary or as may be
required to comply with any applicable law or with any rule or
regulation made pursuant thereto or with any rule or regulation of
any securities exchange or automated quotation system on which the
Notes may be listed, or to conform to usage, or to indicate any
special limitations or restrictions to which any particular Notes
are subject.
(d)
Registered Securities in Book Entry Form . The
Notes shall be issuable in the form of one or more global
Securities registered in the name of The Depository Trust
Company’s nominee, and shall be deposited with, or on behalf
of, The Depository Trust Company, New York, New York (including any
successor depositary appointed hereunder, the “
Depositary ”). The Notes may be surrendered for
registration of transfer at the office or agency of the Company
(including the Corporate Trust Office of the Trustee) maintained
for such purpose, or at any other office or agency maintained by
the Company for such purpose.
So long as the
Depositary or its nominee is the registered owner of a Global Note,
the Depositary or its nominee, as the case may be, will be
considered the sole Holder of the Notes represented by such Global
Note for all purposes under the Indenture and this Supplemental
Indenture, and the beneficial owners of the Notes will be entitled
only to those
5
rights and
benefits afforded to them in accordance with the Depositary’s
regular operating procedures. Except as provided below,
owners of beneficial interests in a Global Note will not be
entitled to have Notes registered in their names, will not receive
or be entitled to receive physical delivery of Notes in
certificated form and will not be considered the registered owners
or Holders thereof under the Indenture or this Supplemental
Indenture.
If (i) the
Depositary is at any time unwilling or unable to continue as
depository or if at any time the Depositary ceases to be a clearing
agency registered under the Exchange Act and a successor depository
is not appointed by the Company within 90 days, (ii) an Event of
Default relating to the Notes has occurred and is continuing and
the beneficial owners representing a majority in principal amount
of Notes advise the Depository to cease acting as depository for
the Note, or (iii) the Company, in its sole discretion, determines
at any time that the Notes shall no longer be represented by a
Global Note, the Company will in accordance with the Indenture
issue individual Notes in certificated form of the same series and
like tenor and in the applicable principal amount in exchange for
the Notes represented by the Global Note. In any such
instance, an owner of a beneficial interest in a Globa
