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
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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
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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) next preceding such Inter
