Exhibit 4.1
SUPPLEMENTAL INDENTURE NO. 13
by and between
HOSPITALITY PROPERTIES TRUST
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
as of August 12, 2009
SUPPLEMENTAL TO THE INDENTURE DATED AS OF
FEBRUARY 25, 1998
HOSPITALITY PROPERTIES TRUST
7.875% Senior Notes due 2014
This SUPPLEMENTAL INDENTURE
NO. 13 (this “ Supplemental Indenture ”)
made and entered into as of August 12, 2009 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 7.875% Senior Notes due 2014;
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 February 15, 2014,
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 February 15, 2014, 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 February 15, 2014, 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 February 15, 2014, 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 7.875% Senior Notes due 2014, 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 0.50% (50 one
hundredths of one percent) plus the yield on treasury securities at
constant maturity under the
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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
February 15, 2014), 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
“7.875% Senior Notes due 2014.”
(b)
Aggregate Principal Amount . The aggregate principal
amount of Notes to be authenticated and delivered under this
Supplemental Indenture shall initially be limited to $300,000,000,
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 the Notes advise the
Depository to cease acting as depository for the Notes, 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
instan