Exhibit 4.1
FORM OF
SUPPLEMENTAL INDENTURE NO. 15
by and between
HRPT PROPERTIES TRUST
and
U.S. BANK NATIONAL ASSOCIATION
as of October 31, 2005
SUPPLEMENTAL TO THE INDENTURE DATED AS OF
JULY 9, 1997
HRPT PROPERTIES TRUST
5 ¾% Senior Notes due November 1,
2015
This SUPPLEMENTAL INDENTURE NO. 15
(this “Supplemental Indenture”) made and entered into
as of October 31, 2005 between HRPT PROPERTIES TRUST, a
Maryland real estate investment trust (the “Company”),
and U.S. BANK NATIONAL ASSOCIATION, a national banking association
(as 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 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 5 ¾% Senior Notes due
November 1, 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 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 May 1, 2015, 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 May 1,
2015, 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
May 1, 2015, 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 May 1,
2015, 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 ¾% Senior Notes due November 1,
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 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 May 1, 2015), 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
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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;
Aggregate Principal Amount; Form of Notes
. The
Notes shall be Registered Securities under the Indenture and shall
be known as the Company’s “5 ¾% Senior Notes
due November 1, 2015.” 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 may not be transferred except as
a whole by DTC to a nominee of DTC or by a nominee of DTC
to
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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 ¾% per annum, from
October 31, 2005 (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
May 1 and November 1, commencing May 1, 2006 (each
of which shall be an “Interest Payment Da