Exhibit 4.16
SUPPLEMENTAL INDENTURE NO.
16
by and between
HRPT PROPERTIES
TRUST
and
U.S. BANK NATIONAL
ASSOCIATION
as of March 16,
2006
SUPPLEMENTAL TO THE
INDENTURE DATED AS OF JULY 9, 1997
HRPT PROPERTIES
TRUST
Floating Rate
Senior Notes due 2011
This SUPPLEMENTAL
INDENTURE NO. 16 (this “Supplemental Indenture”) made
and entered into as of as of March 16, 2006 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
Floating Rate Senior Notes due 2011; 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.
“Calculation Agent” means,
initially, the Trustee and thereafter any successor calculation
agent appointed and then acting as provided in
Section 2.1(b)(iii) of this Supplemental Indenture.
“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
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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 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.
“Interest Payment Date” has the
meaning specified in the form of Note attached as Exhibit A
hereto.
“Interest Period” has the meaning
specified in the form of Note attached as Exhibit A
hereto.
“Interest Record Date” has the
meaning specified in the form of Note attached as Exhibit A
hereto.
“Notes” means the Company’s
Floating Rate Senior Notes due 2011, issued under this Supplemental
Indenture and the Indenture, as amended or supplemented from time
to time.
“Secured Debt” means Debt secured
by any mortgage, lien, charge, pledge or security interest of any
kind.
“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.
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“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 “Floating Rate Senior Notes
due 2011.” The Notes will be limited to an aggregate
principal amount of $400,000,000, 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 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; Calculation Agent.
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(i)
The outstanding principal amount of the Notes will bear interest at
the rate per annum specified in the form of Note attached as
Exhibit A hereto. Interest will accrue from March 16, 2006
(or, if this Note was issued upon any reopening of this series of
Notes, from the date designated by the Company in connection with
such reopening), or from the most recent Interest Payment Date to
which interest had been paid or provided for; provided ,
that if an Interest Payment Date (other than the maturity date) for
this Note falls on a day that is not a Business Day, the Interest
Payment Date shall be postponed to the next succeeding Business Day
unless such next succeeding Business Day would be in the following
month, in which case, the Interest Payment Date shall be the
immediately preceding Business Day. Cash interest shall be
payable quarterly in arrears on each Interest Payment Date,
commencing June 16, 2006, to the Persons in whose names the
Notes are registered in the Security Register at the close of
business on the Interest Record Date next preceding such Interest
Payment Date. Interest will be computed on the basis of the
actual number of days in an Interest Period and a 360-day
year.
(ii)
The interest rate for each Interest Period will be determined by
the Calculation Agent in accordance with the form of Note attached
as Exhibit A hereto. Promptly upon determination of the
interest rate for an Interest Period, the Calculation Agent will
inform the Trustee and the Company thereof. Upon request from
any Holder of Notes, the Calculation Agent will provide the
interest rate in effect for the Notes for the current Interest
Period and, if it has been determined, the interest rate to be in
effect for the next Interest Period. Absent manifest error,
each determination of the interest rate by the Calculation Agent
shall be binding and conclusive on the Holders and any beneficial
owners of Notes, the Trustee and the Company.
(iii)
Initially, the Trustee will act as Calculation Agent. The
Issuer may change any Calculation Agent by notice of the
appointment of a successor Calculation Agent to the Trustee and
without notice to the Holders of Notes.
(c)
Principal Repayment; Currency . The stated maturity of
the Notes is March 16, 2011; provided, however, the Notes may
be earlier redeemed at the option of the Company as provided in
paragraph (d) below. The principal of each Note payable on
its maturity date shall be paid against presentation and surrender
thereof at the Corporate Trust Office of the Trustee in such coin
or currency of the United States of America as at the time of
payment is legal tender for the payment of public or private
debts. The Company will not pay Additional Amounts (as
defined in the Indenture) on the Notes.
(d)
Redemption at the Option of the Company; A