EXHIBIT
4.1
SUPPLEMENTAL INDENTURE NO.
18
by and between
HRPT PROPERTIES
TRUST
and
U.S. BANK NATIONAL
ASSOCIATION
as of September 18,
2007
SUPPLEMENTAL TO THE
INDENTURE DATED AS OF JULY 9, 1997
HRPT PROPERTIES
TRUST
6.65% Senior Notes
due
2018
This SUPPLEMENTAL INDENTURE NO. 18 (this
“Supplemental Indenture”) made and entered into as of
September 18, 2007 between HRPT 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 July 9, 1997 (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 6.65% 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
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 or entity (i) existing at the time such Person or entity
becomes a Subsidiary or (ii) assumed in connection with the
acquisition of assets from such Person or entity, in each case,
other than Debt incurred in connection with, or in contemplation
of, such Person or entity 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
entity or the date the acquired Person or entity 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) provision for taxes of the
Company and its Subsidiaries based on income, (iii) amortization of
debt discount and deferred financing costs, (iv) provisions for
gains and losses on properties and property depreciation and
amortization, (v) the effect of any noncash charge resulting from a
change in accounting principles in determining Earnings from
Operations for such period and (vi) amortization of deferred
charges.
“Corporate Trust Office” means the
corporate trust office of the Trustee which it designates as the
office at which the agreement in question will be administered
(which it may change by notice from time to time), presently
located at One Federal Street, 3rd Floor, Boston, Massachusetts
02110.
“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 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.
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“Earnings from Operations” for any
period means net earnings excluding gains and losses on sales of
investments, extraordinary items, gains and losses on 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 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
6.65% Senior Notes due 2018, 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 0.40% (forty 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, 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
3
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
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:
(a)
Title; Aggregate Principal Amount; Form of Notes . The
Notes shall be Registered Securities under the Indenture and shall
be known as the Company’s “6.65% Senior Notes due
2018.” The Notes will be limited to an aggregate
principal amount of $250,000,000, subject to the right of the
Company to reopen such series for issuances of additional
securities of such series and except as provided in this Section or
in Section 306 of the Indenture. 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”) that 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
4
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 6.65% per annum, from September 18,
2007 (or, in the case of Notes issued upon any 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 semiannually in arrears on each January 15
and July 15, commencing January 15, 2008 (each of which shall be an
“Interest Payment Date”), to the Persons in whose names
the Notes are registered in the Security Register at the close of
business on the day falling 14 calendar days (whether or not a
Business Day) nex
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