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EXHIBIT 4.1
FORM OF
SUPPLEMENTAL INDENTURE NO. 8
by and between
HOSPITALITY PROPERTIES TRUST
and
U.S. BANK NATIONAL ASSOCIATION
as Trustee
as of February 15, 2005
SUPPLEMENTAL TO THE INDENTURE DATED AS OF FEBRUARY 25, 1998
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HOSPITALITY PROPERTIES TRUST
5 1/8% Senior Notes due February 15, 2015
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This SUPPLEMENTAL INDENTURE NO. 8 (this "Supplemental
Indenture") made and
entered into as of February 15, 2005 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 in its capacity as Trustee), 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
5 1/8% Senior Notes due February 15, 2015; 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.
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"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).
"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
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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, 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 August
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 August 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
August 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 5 1/8% Senior Notes due February 15,
2015,
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
0.20%
(twenty one hundredths of a 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,
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
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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:
(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 "5 1/8% Senior
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Notes due February 15, 2015." The aggregate principal amount of
Notes which may
be authenticated and delivered under this Supplemental Indenture
shall not,
except as permitted by the provisions of the Indenture, exceed
$300,000,000,
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
Supplemental Indenture in addition to the $300,000,000 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
5 1/8% per annum, from February 15, 2005 (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, 2005, or if such day is not a Business Day, on the
next succeeding
Business Day (each of which shall be an "Interest Payment
Date"), to the Persons
in who
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