EXHIBIT 4.2
NINTH SUPPLEMENTAL INDENTURE TO
AMENDED AND RESTATED INDENTURE
NINTH SUPPLEMENTAL INDENTURE, dated as of December 14, 2001, among HOST
MARRIOTT, L.P., a Delaware limited partnership (the "Company"), the Subsidiary
Guarantors signatory to this Ninth Supplemental Indenture and HSBC BANK USA
(formerly MARINE MIDLAND BANK), as Trustee (the "Trustee") to the Amended and
Restated Indenture, dated as of August 5, 1998, as amended and supplemented
through the date of this Ninth Supplemental Indenture (the "Indenture").
RECITALS
WHEREAS, the Company, its Parents, certain of the Subsidiary Guarantors and
the Trustee executed and delivered the Amended and Restated Indenture, dated as
of August 5, 1998, amending and restating the form of Indenture previously filed
as Exhibit 4.1 to the Registration Statement (No. 333-50729) filed with the
Securities and Exchange Commission ("Commission") on Form S-3 by the Company,
its Parents and certain of the Subsidiary Guarantors;
WHEREAS, the Company and the Subsidiary Guarantors desire to create two
series of Securities to be issued under the Indenture, as hereby supplemented,
to be known as (i) the 9 1/2% Series H Senior Notes due 2007 and Subsidiary
Guarantees thereof of the Subsidiary Guarantors (hereinafter, the "Series H
Notes") and (ii) the 9 1/2% Series I Senior Notes due 2007 and the Subsidiary
Guarantees thereof of the Subsidiary Guarantors to be exchanged for the Series H
Notes (hereinafter, the "Series I Notes");
WHEREAS, Section 9.1(e) of the Indenture provides that the Company, the
Subsidiary Guarantors and the Trustee may amend or supplement the Indenture
without the written consent of the Holders of the outstanding Securities to
provide for the issuance of and establish the form and terms and conditions of
Securities of any Series as permitted by the Indenture;
WHEREAS, all acts and things prescribed by the Indenture, by law and by the
Certificate of Incorporation and the Bylaws of the Company, the Subsidiary
Guarantors and the Trustee necessary to make this Ninth Supplemental Indenture a
valid instrument legally binding on the Company, the Subsidiary Guarantors and
the Trustee, in accordance with its terms, have been duly done and performed;
and
WHEREAS, all conditions precedent to amend or supplement the Indenture have
been met;
NOW, THEREFORE, to comply with the provisions of the Indenture, and in
consideration of the above premises, the Company, the Subsidiary Guarantors and
the Trustee covenant and agree as follows:
ARTICLE 1
Section 1.1 Nature of Supplemental Indenture. This Ninth Supplemental
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Indenture supplements the Indenture and does and shall be deemed to form a part
of, and shall be construed in connection with and as part of, the Indenture for
any and all purposes.
Section 1.2 Establishment of New Series. Pursuant to Section 2.2 of the
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Indenture, there is hereby established the Series H Notes and the Series I Notes
(collec tively, the "9 1/2% Notes") having the terms, in addition to those set
forth in the Indenture and this Ninth Supplemental Indenture, set forth in the
form of 9 1/2% Note, attached to this Ninth Supplemental Indenture as Exhibit A,
which is incorporated herein as a part of this Ninth Supplemental Indenture.
Section 1.3 Redemption. The Company may redeem the 9 1/2% Notes in whole
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but not in part at any time at a Redemption Price equal to 100% of the principal
amount thereof plus the Make-Whole Premium, together with accrued and unpaid
interest thereon, if any, to the applicable Redemption Date.
Notice of a redemption of the 9 1/2% Notes made pursuant to this Section
1.03 shall be given in the manner set forth in Section 3.3 of the Indenture;
provided, however, that any such notice need not set forth the Redemption Price
but need only set forth the calculation thereof as described in the immediately
preceding paragraph of this Section 1.03. The Redemption Price, calculated as
aforesaid, shall be set forth in an Officer's Certificate delivered by the
Company to the Trustee no later than one Business Day prior to the Redemption
Date.
The 9 1/2% Notes will not have the benefit of any sinking fund.
ARTICLE 2
Section 2.1 The term "Subsidiary Guarantors" means, with respect to the 9
1/2% Notes, (A) the Subsidiary Guarantors listed in Section 2.03 below and (B)
any Future Subsidiary Guarantors that become Subsidiary Guarantors pursuant to
the terms of the Indenture, but excluding any Persons whose Guarantees have been
released pursuant to the terms of the Indenture. The provisions of Article 12
of the Indenture will be applicable to the 9 1/2% Notes.
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Section 2.2 The second sentence of the definition of "Subsidiary
Guarantee" set forth in Section 1.1 of the Indenture shall read, for purposes of
the 9 1/2% Notes, as follows: "Each Subsidiary Guarantee with respect to the 9
1/2% Notes will be a senior obligation of the Subsidiary Guarantor and will be
full and unconditional regardless of the enforceability of the 9 1/2% Notes, the
Ninth Supplemental Indenture or the Indenture."
Section 2.3 The following entities shall constitute the "Subsidiary
Guarantors" with respect to the 9 1/2% Notes, the Series A Notes, the Series B
Notes, the Series C Notes, the Series E Notes and the Series G Notes until such
time as their guarantees are released in accordance with the terms of the
Indenture:
(1) Airport Hotels LLC;
(2) Host of Boston, Ltd.;
(3) Host of Houston, Ltd;
(4) Host of Houston 1979;
(5) Chesapeake Financial Services LLC;
(6) City Center Interstate Partnership LLC;
(7) HMC Retirement Properties, L.P.;
(8) HMH Marina LLC;
(9) Farrell's Ice Cream Parlour Restaurants LLC;
(10) HMC Atlanta LLC;
(11) HMC BCR Holdings LLC;
(12) HMC Burlingame LLC;
(13) HMC California Leasing LLC;
(14) HMC Capital LLC;
(15) HMC Capital Resources LLC;
(16) HMC Park Ridge LLC;
(17) HMC Partnership Holdings LLC;
(18) Host Park Ridge LLC;
(19) HMC Suites LLC;
(20) HMC Suites Limited Partnership;
(21) PRM LLC;
(22) Wellsford-Park Ridge HMC Hotel Limited Partnership;
(23) YBG Associates LLC;
(24) HMC Chicago LLC;
(25) HMC Desert LLC;
(26) HMC Palm Desert LLC;
(27) MDSM Finance LLC;
(28) HMC Diversified LLC;
(29) HMC East Side II LLC;
(30) HMC Gateway LLC;
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(31) HMC Grand LLC;
(32) HMC Hanover LLC;
(33) HMC Hartford LLC;
(34) HMC Hotel Development LLC;
(35) HMC HPP LLC;
(36) HMC IHP Holding LLC;
(37) HMC Manhattan Beach LLC;
(38) HMC Market Street LLC;
(39) New Market Street LP;
(40) HMC Georgia LLC;
(41) HMC Mexpark LLC;
(42) HMC Polanco LLC;
(43) HMC NGL LLC;
(44) HMC OLS I L.P.;
(45) HMC OP BN LLC;
(46) HMC Pacific Gateway LLC;
(47) HMC PLP LLC;
(48) Chesapeake Hotel Limited Partnership;
(49) HMC Potomac LLC;
(50) HMC Properties I LLC;
(51) HMC Properties II LLC;
(52) HMC RTZ Loan I LLC;
(53) HMC RTZ II LLC;
(54) HMC SBM Two LLC;
(55) HMC Seattle LLC;
(56) HMC SFO LLC;
(57) HMC Swiss Holdings LLC;
(58) HMC Waterford LLC;
(59) HMH General Partner Holdings LLC;
(60) HMH Norfolk LLC;
(61) HMH Norfolk, L.P.;
(62) HMH Pentagon LLC;
(63) HMH Restaurants LLC;
(64) HMH Rivers LLC;
(65) HMH Rivers, L.P.;
(66) HMH WTC LLC;
(67) HMP Capital Ventures LLC;
(68) HMP Financial Services LLC;
(69) Host La Jolla LLC;
(70) City Center Hotel Limited Partnership;
(71) Times Square LLC;
(72) Ivy Street LLC;
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(73) Market Street Host LLC;
(74) MFR of Illinois LLC;
(75) MFR of Vermont LLC;
(76) MFR of Wisconsin LLC;
(77) Philadelphia Airport Hotel LLC;
(78) PM Financial LLC;
(79) PM Financial LP;
(80) HMC Property Leasing LLC;
(81) HMC Host Restaurants LLC;
(82) Santa Clara HMC LLC;
(83) S.D. Hotels LLC;
(84) Times Square GP LLC;
(85) Durbin LLC;
(86) HMC HT LLC;
(87) HMC JWDC GP LLC;
(88) HMC JWDC LLC;
(89) HMC OLS I LLC;
(90) HMC OLS II L.P.;
(91) HMT Lessee Parent LLC;
(92) HMC/Interstate Ontario, L.P.;
(93) HMC/Interstate Manhattan Beach, L.P.;
(94) Host/Interstate Partnership, L.P.;
(95) HMC/Interstate Waterford, L.P.;
(96) Ameliatel;
(97) HMC Amelia I LLC;
(98) HMC Amelia II LLC;
(99) Rockledge Hotel LLC; and
(100) Fernwood Hotel LLC.
By execution of this Ninth Supplemental Indenture, each of the Subsidiary
Guarantors makes and confirms the guarantees set forth in Section 12.1 of the
Indenture and shall be deemed to have signed the notation of guarantee set forth
on the Securities as provided in Section 12.2 of the Indenture.
ARTICLE 3
Section 3.1 Subject to the further provisions of this Article 3, the
covenants set forth in Article 4 of the Indenture shall be applicable to the 9
1/2% Notes. By virtue of the occurrence of the REIT Conversion, Section 4.15 of
the Indenture is applicable, and Section 4.9 of the Indenture is inapplicable,
to the 9 1/2% Notes.
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Section 3.2 The provisions of Sections 4.8, 4.10, 4.11, 4.12 and 4.15 of
the Indenture shall be applicable to the 9 1/2% Notes only for so long as and
during any time that such 9 1/2% Notes are not rated Investment Grade.
ARTICLE 4
Section 4.1 The following definitions are hereby added to the Indenture
solely with respect to the 9 1/2% Notes:
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depository, Euroclear and Clearstream that apply to such
transfer or exchange at the relevant time.
"Certificated Note" means a certificated 9 1/2% Note registered in the
name of the Holder thereof and issued in accordance with Section 5.01 of this
Ninth Supplemen tal Indenture, in the form of Exhibit A to this Ninth
Supplemental Indenture except that such 9 1/2% Note shall not include the
information called for by footnotes 2, 5 and 8 thereof.
"Clearstream" means Clearstream Banking S.A., or its successors.
"Euroclear" means Euroclear Bank S.A./N.V., or its successor, as
operator of the Euroclear system.
"Exchange Notes" means the Series I Notes, which will be issued in
exchange for Series H Notes pursuant to an Exchange Offer.
"Exchange Offer" means the offer that is to be made by the Company and
the Subsidiary Guarantors in accordance with the terms of the Registration
Rights Agreement.
"Global Note" means a 9 1/2% Note that includes the information
referred to in footnotes 2, 5 and 8 to the form of 9 1/2% Note, attached to this
Ninth Supplemental Indenture as Exhibit A, issued under the Indenture, that is
deposited with or on behalf of and registered in the name of the Depository or a
nominee of the Depository.
"Global Note Legend" means the legend set forth in Section 5.01(g)(ii)
of this Ninth Supplemental Indenture, which is required to be placed on all
Global Notes issued under the Indenture.
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"Indirect Participant" means an entity that, with respect to DTC,
clears through or maintains a direct or indirect custodial relationship with a
Participant.
"Initial Purchasers" means Deutsche Banc Alex. Brown Inc., Banc of
America Securities LLC, Bear, Stearns & Co. Inc., Credit Lyonnais Securities
(USA) Inc., Credit Suisse First Boston Corporation, Goldman, Sachs & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Morgan Stanley & Co.
Incorporated, Scotia Capital (USA) Inc. and SG Cowen Securities Corporation.
"Institutional Accredited Investor" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who is not also a QIB.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Series H Notes for use by such
Holders in connection with the Exchange Offer.
"Make-Whole Premium" means, with respect to any 9 1/2% Note at any
Redemption Date, the excess, if any, of (a) the present value of the sum of the
principal amount and premium, if any, that would be payable on such 9 1/2% Note
on its maturity date and all remaining interest payments (not including any
portion of such payments of interest accrued as of the Redemption Date) to and
including such maturity date, discounted on a semi-annual bond equivalent basis
from such maturity date to the Redemption Date at a per annum interest rate
equal to the sum of the Treasury Yield (determined on the Business Day
immediately preceding such Redemption Date), plus 50 basis points, over (b) the
principal amount of the 9 1/2% Note being redeemed.
"9 1/2% Notes" means, collectively, the Series H Notes and, when and
if issued as provided in the Registration Rights Agreement, the Exchange Notes.
"Offering Memorandum" means the Offering Memorandum of the Company
and the Subsidiary Guarantors dated December 6, 2001 with respect to the 9 1/2%
Notes.
"Participant" means, with respect to the Depository, Euroclear or
Clearstream, a Person who has an account with the Depository, Euroclear or
Clearstream, respectively (and, with respect to The Depository Trust Company,
shall include Euroclear and Clearstream).
"Private Placement Legend" means the legend set forth in Section
5.01(g)(i) of this Ninth Supplemental Indenture to be placed on all Series H
Notes issued under the Indenture except where otherwise permitted by the
provisions of the Indenture.
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"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of December 14, 2001, by and among the Company, the
Subsidiary Guarantors and the Initial Purchasers, as such agreement may be
amended, modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities
Act, as it may be amended from time to time, and any successor provision
thereto.
"Regulation S Global Note" means a Global Note issued in accordance
with Regulation S.
"Regulation S Restricted Global Note" means a Regulation S Global Note
until the expiration of the Regulation S Restricted Period; such Regulation S
Global Note constitutes a Restricted Global Note.
"Regulation S Restricted Period" means the 40-day period beginning on
the later of (i) the day that the Initial Purchasers advise the Company and the
Trustee in writing is the first day on which the 9 1/2% Notes were offered to
persons other than distributors (as defined in Regulation S) in reliance on
Regulation S and (ii) December 14, 2001.
"Regulation S Unrestricted Global Note" means a Regulation S Global
Note following the expiration of the Regulation S Restricted Period; such
Regulation S Global Note constitutes an Unrestricted Global Note.
"Restricted Certificated Note" means a Certificated Note that includes
the information called for in footnotes 6 and 7 (and not in footnotes 2, 5 and
8) to the form of 9 1/2% Note, attached to this Ninth Supplemental Indenture as
Exhibit A, issued under the Indenture.
"Restricted Global Note" means a Global Note that includes the
information called for in footnotes 2, 5, 6, 7 and 8 to the form of 9 1/2% Note,
attached to this Ninth Supplemental Indenture as Exhibit A, issued under the
Indenture; provided, that in no case shall an Exchange Note issued in accordance
with the Indenture and the terms of the Registration Rights Agreement be a
Restricted Global Note; provided, further, that any Regulation S Global Note
shall, following the completion of the Regulation S Restricted Period,
automatically become an Unrestricted Global Note for the purposes of this Ninth
Supplemental Indenture, regardless of the information appearing on such Global
Note.
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"Rule 144A" means Rule 144A promulgated under the Securities Act, as
it may be amended from time to time, and any successor provision thereto.
"Rule 144A Global Note" means a Global Note issued in accordance with
Rule 144A.
"Rule 144A Restricted Global Note" means a Restricted Global Note
issued in accordance with Rule 144A.
"Shelf Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
"Transfer Restricted Notes" means Series H Notes that include the
information called for by footnotes 6 and 7 to the form of 9 1/2% Note, attached
to this Ninth Supplemental Indenture as Exhibit A, issued under the Indenture.
"Treasury Yield" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled by and published in the most recent Federal Reserve Statistical Release
H.15 (519) which has become publicly available at least two Business Days prior
to the date fixed for redemption (or, if such Statistical Release is no longer
published, any publicly available source of similar data)) most nearly equal to
the then remaining average life of the 9 1/2% Notes, provided that if the
average life of the 9 1/2% Notes is not equal to the constant maturity of a
United States Treasury security for which a weekly average yield is given, the
Treasury yield shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
Treasury securities for which such yields are given, except that if the average
life of the 9 1/2% Notes is less than one year, the weekly average yield on
actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
"Unrestricted Certificated Notes" means one or more Certificated Notes
that do not include and are not required to include the information called for
by footnotes 6 and 7 to the form 9 1/2% Note, attached to this Ninth
Supplemental Indenture as Exhibit A, issued under the Indenture.
"Unrestricted Global Note" means a permanent Global Note in the form
of Exhibit A attached to this Ninth Supplemental Indenture that includes the
information referred to in footnotes 2, 5 and 8 thereof, and that is deposited
with or on behalf of and registered in the name of the Depository.
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ARTICLE 5
Section 5.1 For purposes of the 9 1/2% Notes, Section 2.7 of the
Indenture is hereby supplemented with, and where inconsistent replaced by, the
following provisions:
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depository to a nominee of the Depository,
by a nominee of the Depository to the Depository or to another nominee of the
Depository, or by the Depository or any such nominee to a successor Depository
or a nominee of such successor Depository. All Global Notes will be exchanged
by the Company for Certificated Notes if (i) the Company delivers to the Trustee
notice from the Depository (A) that it is unwilling or unable to continue to act
as Depository and a successor Depository is not appointed by the Company within
90 days after the date of such notice from the Depository or (B) that it is no
longer a clearing agency registered under the Exchange Act and a successor
Depository is not appointed by the Company within 90 days after the date of such
notice from the Depository, (ii) the Company, at its option, notifies the
Trustee in writing that it elects to cause the issuance of Certificated Notes or
(iii) upon request of the Trustee or Holders of a majority of the aggregate
principal amount of outstanding 9 1/2% Notes if there shall have occurred and be
continuing a Default or Event of Default with respect to the 9 1/2% Notes. Upon
the occurrence of any of the preceding events in (i), (ii) or (iii) above, upon
surrender by the Depositary of the Global Note, Certificated Notes shall be
issued in such names as the Depository shall instruct the Trustee. Global Notes
also may be exchanged or replaced, in whole or in part, as provided in Sections
2.8 and 2.11 of the Indenture. A Global Note may not be exchanged for another 9
1/2% Note other than as provided in this Section 5.01(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 5.01(b), (c) or (f) of this Ninth Supplemental Indenture.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depository, in accordance with the provisions of the
Indenture and the Applicable Procedures. Beneficial interests in the Restricted
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein. Transfers of beneficial interests in the Global Notes also
shall require compliance with either subparagraph (i) or (ii) below, as
applicable, as well as one or more of the other following subparagraphs, as
applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to Persons
who take delivery thereof in the form of a beneficial interest in the same
Restricted Global Note in accordance with the transfer restrictions set forth in
the Private Placement
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Legend. Beneficial interests in any Unrestricted Global Note may be transferred
to Persons who take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note. No written orders or instructions shall be required to
be delivered to the Registrar to effect the transfers described in this Section
5.01(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 5.01(b)(i) above, the transferor of
such beneficial interest must deliver to the Registrar either (A) (1) an order
from a Participant or an Indirect Participant given to the Depository in
accordance with the Applicable Procedures directing the Depository to credit or
cause to be credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase
or (B) (1) an order from a Participant or an Indirect Participant given to the
Depository in accordance with the Applicable Procedures directing the Depository
to cause to be issued a Certificated Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depository to the Registrar containing information regarding the Person in whose
name such Certificated Note shall be registered to effect the transfer or
exchange referred to in (B)(1) above. Upon consummation of an Exchange Offer by
the Company in accordance with Section 5.01(f) of this Ninth Supplemental
Indenture, the requirements of this Section 5.01(b)(ii) shall be deemed to have
been satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial interests
in the Restricted Global Notes. Upon satisfaction of all of the requirements
for transfer or exchange of beneficial interests in Global Notes contained in
the Indenture and the 9 1/2% Notes, the Trustee shall adjust the principal
amount of the relevant Global Note(s) pursuant to Section 5.01(h) of this Ninth
Supplemental Indenture.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be transferred to
a Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Note if the transfer complies with the requirements of
Section 5.01(b)(ii) above and the Registrar receives a certificate in the form
of Exhibit B to this Ninth Supplemental Indenture, including the certifications
in item (1) or item (1A) thereof, as applicable.
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in an Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any holder
thereof for a beneficial interest in an Unrestricted Global Note or transferred
to a Person who takes delivery thereof in the form of a beneficial interest in
an Unrestricted Global
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Note if the exchange or transfer complies with the requirements of Section
5.01(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and
Section 5.01(f) of this Ninth Supplemental Indenture, and the holder of the
beneficial interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a Broker-Dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person who
is an affiliate (as defined in Rule 144) of the Company or the Subsidiary
Guarantors;
(B) such transfer is effected pursuant to the Shelf Registra tion
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement;
(D) such transfer occurs on or after December 14, 2003 and the
Registrar receives the following: (1) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange such beneficial
interest for a beneficial interest in an Unrestricted Global Note, a
certificate from such holder in the form of Exhibit C to this Ninth
Supplemental Indenture, including the certifications in item (1)(a)
thereof; or (2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B to this Ninth Supplemental Indenture, including the
certifications in item (3) thereof; and, in each such case set forth in
this subparagraph (D), an Opinion of Counsel in form reasonably acceptable
to the Registrar and the Company to the effect that such exchange or
transfer is in compliance with the Securities Act and that the restrictions
on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act; or
(E) if the holder of a beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in a Regulation
S Unrestricted Global Note, such transfer occurs after the completion of
the Regulation S Restricted Period and the Registrar receives a certificate
from such
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holder in the form of Exhibit B to this Ninth Supplemental Indenture,
including the certifications in item (3)(a1) thereof.
If any such transfer is effected pursuant to subparagraph (A), (B) or
(D) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of a Company Order in accordance with
Section 2.3 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (A), (B) or (D) above.
(v) Transfer of Beneficial Interests in a Regulation S Unrestricted
Global Note for Beneficial Interests in a Restricted Global Note. Until
December 14, 2003, a beneficial interest in any Regulation S Unrestricted Global
Note may be transferred to a Person who takes delivery thereof in the form of a
beneficial interest in a Restricted Global Note if the transfer complies with
the requirements of Section 5.01(b)(ii) above and the Registrar receives a
certificate in the form of Exhibit B to this Ninth Supplemental Indenture,
including the certifications in item (1) or item (1)(A) thereof, as applicable.
Except for transfers described in the immediately preceding sentence, beneficial
interests in an Unrestricted Global Note cannot be exchanged for, or transferred
to, Persons who take delivery thereof in the form of a beneficial interest in a
Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Certificated
Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Certificated Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Certificated Note or to transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Restricted Certificated Note, then, if the
exchange or transfer complies with the require ments of Section 5.01(a) above,
upon receipt by the Registrar of the following documenta tion:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Certificated Note, a certificate from such holder in the form of Exhibit C
to this Ninth Supplemental Indenture, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to the
effect set forth in Exhibit B to this Ninth Supplemental Indenture,
including the certifications in item (1) thereof;
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(C) if such beneficial interest is being transferred pursuant to
an exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B to this Ninth Supplemental Indenture,
including the certifications in item (2)(a) thereof;
(D) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) and (C) above, a certificate to the effect set forth in
Exhibit B to this Ninth Supplemen tal Indenture, including the
certifications, certificates and Opinion of Counsel required by item (2)(d)
thereof, if applicable;
(E) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth
in Exhibit B to this Ninth Supplemental Indenture, including the
certifications in item (2)(b) thereof;
(F) if such beneficial interest is being transferred pursuant to
an effective registration statement under the Securities Act, a certificate
to the effect set forth in Exhibit B to this Ninth Supplemental Indenture,
including the certifications in item (2)(c) thereof; or
(G) if such beneficial interest is being transferred pursuant to
Regulation S under the Securities Act, a certificate to the effect set
forth in Exhibit B to this Ninth Supplemental Indenture, including the
certifications in item (1A) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Note to be reduced accordingly pursuant to Section 5.01(h) of
this Ninth Supplemental Indenture, and the Company shall execute and, upon
receipt of a Company Order pursuant to Section 2.3 of the Indenture, the Trustee
shall authenticate and deliver to the Person designated in the instructions a
Restricted Certificated Note in the appropriate principal amount. Any
Restricted Certificated Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 5.01(c) shall be registered in
such name or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depository and the Participant or Indirect Participant.
The Trustee shall deliver such Restricted Certificated Notes to the Persons in
whose names such Series H Notes are so registered. Any Restricted Certificated
Note issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section
14
5.01(c)(i) shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to
Unrestricted Certificated Notes. A holder of a beneficial interest in a
Restricted Global Note may exchange such beneficial interest for an Unrestricted
Certificated Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Certificated Note only if the
exchange or transfer complies with the requirements of Section 5.01(a) above
and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and
Section 5.01(f) of this Ninth Supplemental Indenture, and the holder of
such beneficial interest, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a Broker-Dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate (as
defined in Rule 144) of the Company or the Subsidiary Guarantors;
(B) such transfer is effected pursuant to the Shelf Registra tion
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement;
(D) such transfer occurs on or after December 14, 2003 and the
Registrar receives the following: (1) if the holder of such beneficial
interest in a Restricted Global Note proposes to exchange such beneficial
interest for a Certificated Note that does not bear the Private Placement
Legend, a certificate from such holder in the form of Exhibit C to this
Ninth Supplemental Indenture, including the certifications in item (1)(b)
thereof; or (2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a Certificated Note that does
not bear the Private Placement Legend, a certificate from such holder in
the form of Exhibit B to this Ninth Supplemental Indenture, including the
certifications in item (3) thereof; and, in each such case set forth in
this subpara graph (D), an Opinion of Counsel in form reasonably
acceptable to the Registrar and the Company to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act; or
15
(E) if the holder of a beneficial interest in a Restricted Global
Note proposes to transfer such beneficial interest to a Person who shall
take delivery thereof in the form of a beneficial interest in an
Unrestricted Certificated Note pursuant to Regulation S, such transfer
occurs after the completion of the Regulation S Restricted Period and the
Registrar receives a certificate from such holder in the form of Exhibit B
to this Ninth Supplemental Indenture, including the certifications in item
(3)(a1) thereof.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Certificated Notes. If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for an
Unrestricted Certificated Note or to transfer such beneficial interest to a
Person who takes delivery thereof in the form of an Unrestricted Certificated
Note, then, if the exchange or transfer complies with the requirements of
Section 5.01(a) above and upon satisfaction of the conditions set forth in
Section 5.01(b)(ii) of this Ninth Supplemental Indenture, the Trustee shall
cause the aggregate principal amount of the applicable Unrestricted Global Note
to be reduced accordingly pursuant to Section 5.01(h) of this Ninth Supplemental
Indenture, and the Company shall execute and, upon receipt of a Company Order
pursuant to Section 2.3 of the Indenture, the Trustee shall authenticate and
deliver to the Person designated in the instructions an Unrestricted
Certificated Note in the appropriate principal amount. Any Unrestricted
Certificated Note issued in exchange for a beneficial interest pursuant to this
Section 5.01(c)(iii) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the Depository
and the Participant or Indirect Participant. The Trustee shall deliver such
Unrestricted Certificated Notes to the Persons in whose names such 9 1/2% Notes
are so registered. Any Unrestricted Certificated Note issued in exchange for a
beneficial interest pursuant to this Section 5.01(c)(iii) shall not bear the
Private Placement Legend.
(d) Transfer and Exchange of Certificated Notes for Beneficial
Interests.
(i) Restricted Certificated Notes or Unrestricted Certificated
Notes to Beneficial Interests in Restricted Global Notes. If any Holder of a
Restricted Certificated Note or Unrestricted Certificated Note proposes to
exchange such Series H Note for a beneficial interest in a Restricted Global
Note other than a Regulation S Restricted Global Note or to transfer such
Restricted Certificated Notes or Unrestricted Certificated Notes to a Person who
takes delivery thereof in the form of a beneficial interest in a Restricted
Global Note, then, upon receipt by the Registrar of the following documentation:
16
(A) if the Holder of such Restricted Certificated Note or
Unrestricted Certificated Note proposes to exchange such Series H Note for
a beneficial interest in a Restricted Global Note that is not a Regulation
S Restricted Global Note, a certificate from such Holder in the form of
Exhibit C to this Ninth Supplemental Indenture, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Certificated Note or Unrestricted
Certificated Note is being transferred to a QIB in accordance with Rule
144A under the Securities Act, a certificate to the effect set forth in
Exhibit B to this Ninth Supplemental Indenture, including the
certifications in item (1) thereof; or
(C) if such Restricted Certificated Note or Unrestricted
Certificated Note is being transferred to a person outside the United
States in accordance with Regulation S under the Securities Act, a
certificate to the effect set forth in Exhibit B to this Ninth Supplemental
Indenture, including the certifications in item (1A) thereof,
the Trustee shall cancel the Restricted Certificated Note or Unrestricted
Certificated Note, and increase or cause to be increased the aggregate principal
amount of the appropriate Restricted Global Note.
(ii) Restricted Certificated Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Certificated Note may
exchange such 9 1/2% Note for a beneficial interest in an Unrestricted Global
Note or transfer such Restricted Certificated Note to a Person who takes
delivery thereof in the form of a beneficial interest in an Unrestricted Global
Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and
Section 5.01(f) of this Ninth Supplemental Indenture, and the Holder, in
the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company or the Subsidiary Guarantors;
(B) such transfer is effected pursuant to the Shelf Registra tion
Statement in accordance with the Registration Rights Agreement;
17
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement;
(D) such transfer occurs on or after December 14, 2003 and the
Registrar receives the following: (1) if the Holder of such Restricted
Certifi cated Notes proposes to exchange such 9 1/2% Notes for a
beneficial interest in the Unrestricted Global Note, a certificate from
such Holder in the form of Exhibit C to this Ninth Supplemental Indenture,
including the certifications in item (1)(c) thereof; or (2) if the Holder
of such Restricted Certificated Notes proposes to transfer such Series H
Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from
such Holder in the form of Exhibit B to this Ninth Supplemental Indenture,
including the certifications in item (3) thereof; and, in each such case
set forth in this subpara graph (D), an Opinion of Counsel in form
reasonably acceptable to the Registrar and the Company to the effect that
such exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act; or
(E) if the holder of a beneficial interest in a Restricted
Certificated Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest in a
Regulation S Unrestricted Global Note, such transfer occurs after the
completion of the Regulation S Restricted Period and the Registrar receives
a certificate from such holder in the form of Exhibit B to this Ninth
Supplemental Indenture, including the certifications in item (3)(a1)
thereof.
Upon satisfaction of the conditions of any of the subparagraphs in this Section
5.01(d)(ii), the Trustee shall cancel the Restricted Certificated Notes so
transferred or exchanged and increase or cause to be increased the aggregate
principal amount of the appropriate Unrestricted Global Note.
(iii) Unrestricted Certificated Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Certificated Note may
exchange such 9 1/2% Note for a beneficial interest in an Unrestricted Global
Note or transfer such Certificated Notes to a Person who takes delivery thereof
in the form of a beneficial interest in an Unrestricted Global Note at any time.
Upon receipt of a request for such an exchange or registration of transfer, the
Trustee shall cancel the applicable Unrestricted Certificated Note and increase
or cause to be increased the aggregate principal amount of one of the
Unrestricted Global Notes. If any such exchange or registration of transfer from
a Certificated Note to a beneficial interest is effected
18
pursuant to subparagraphs (ii)(B), (ii)(D) or (iii) of this Section 5.01(d) at a
time when an Unrestricted Global Note has not yet been issued, the Company shall
issue and, upon receipt of a Company Order in accordance with Section 2.3 of the
Indenture, the Trustee shall authenticate one or more Unrestricted Global Notes
in an aggregate principal amount equal to the principal amount of Certificated
Notes so transferred.
(e) Transfer and Exchange of Certificated Notes for Certificated
Notes. Upon request by a Holder of Certificated Notes and such Holder's
compliance with the provisions of this Section 5.01(e), the Registrar shall
register the transfer or exchange of Certificated Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Certificated Notes duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 5.01(e).
(i) Restricted Certificated Notes to Restricted Certificated Notes.
Any Restricted Certificated Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Restricted
Certificated Note if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the form
of Exhibit B to this Ninth Supplemental Indenture, including the
certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Regulation S under
the Securities Act, then the transferor must deliver a certificate in the
form of Exhibit B to this Ninth Supplemental Indenture, including the
certifications in item (1A) thereof; and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of Exhibit B to this
Ninth Supplemental Indenture, including the certifications, certificates
and Opinion of Counsel required by item (2) thereof, if applicable.
(ii) Restricted Certificated Notes to Unrestricted Certificated
Notes. Any Restricted Certificated Note may be exchanged by the Holder thereof
for an Unrestricted Certificated Note or transferred to a Person or Persons who
take delivery thereof in the form of an Unrestricted Certificated Note if:
19
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and
Section 5.01(f) of this Ninth Supplemental Indenture, and the Holder, in
the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
Broker-Dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule 144)
of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement;
(D) such transfer occurs on or after December 14, 2003 and the
Registrar receives the following: (1) if the Holder of such Restricted
Certifi cated Notes proposes to exchange such 9 1/2% Notes for an
Unrestricted Certificated Note, a certificate from such Holder in the form
of Exhibit C to this Ninth Supplemental Indenture, including the
certifications in item (1)(d) thereof; or (2) if the Holder of such
Restricted Certificated Notes proposes to transfer such 9 1/2% Notes to a
Person who shall take delivery thereof in the form of an Unrestricted
Certificated Note, a certificate from such Holder in the form of Exhibit B
to this Ninth Supplemental Indenture, including the certifications in item
(3) thereof; and, in each such case set forth in this subparagraph (D), an
Opinion of Counsel in form reasonably acceptable to the Registrar and the
Company to the effect that such exchange or transfer is in compliance with
the Securities Act and that the restrictions on transfer contained herein
and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act;
(E) if the holder of a beneficial interest in a Restricted
Certificated Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest in an
Unrestricted Certificated Note pursuant to Regulation S, such transfer
occurs after the completion of the Regulation S Restricted Period and the
Registrar receives a certificate from such holder in the form of Exhibit B
to this Ninth Supplemental Indenture, including the certifications in item
(3)(a1) thereof.
(iii) Unrestricted Certificated Notes to Unrestricted Certificated
Notes. A Holder of Unrestricted Certificated Notes may transfer such 9 1/2%
Notes to a
20
Person who takes delivery thereof in the form of an Unrestricted
Certificated Note. Upon receipt of a request to register such a transfer,
the Registrar shall register the Unrestricted Certificated Notes pursuant
to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of a Company Order in accordance with Section 2.3 of the
Indenture and an Opinion of Counsel for the Company as to certain matters
discussed in this Section 5.01(f), the Trustee shall authenticate (i) one
or more Unrestricted Global Notes in an aggregate principal amount equal to
the sum of (A) the principal amount of the beneficial interests in the
Restricted Global Notes and Regulation S Global Notes tendered for
acceptance by Persons who certify in the applicable Letters of Transmittal
that (x) they are not Broker-Dealers, (y) they are not participating in a
distribution of the Exchange Notes and (z) they are not affiliates (as
defined in Rule 144) of the Company, and accepted for exchange in the
Exchange Offer and (B) the principal amount of Certificated Notes exchanged
or transferred for beneficial interests in Unrestricted Global Notes in
connection with the Exchange Offer pursuant to Section 5.01(d)(ii) and (ii)
Certificated Notes in an aggregate principal amount equal to the principal
amount of the Restricted Certificated Notes accepted for exchange in the
Exchange Offer (other than Certificated Notes described in clause (i)(B)
immediately above). Concurrently with the issuance of such Series I Notes,
the Trustee shall cause the aggregate principal amount of the applicable
Restricted Global Notes and Regulation S Global Notes to be reduced
accordingly, and the Company shall execute and, upon receipt of a Company
Order pursuant to Section 2.3 of the Indenture, the Trustee shall
authenticate and deliver to the Persons designated by the Holders of
Certificated Notes so accepted Certificated Notes in the appropriate
principal amount.
The Opinion of Counsel for the Company referenced above shall state
that:
(1) the Exchange Notes have been duly authorized and, when executed
and authenticated in accordance with the provisions of the Indenture and
delivered in exchange for Series H Notes in accordance with the Indenture
and the Exchange Offer, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, enforceable in
accordance with their terms except as (x) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally, (y) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability and (z) other customary limitations and exceptions for
opinions of such type; and
(2) when the Exchange Notes are executed and authenticated in
accordance with the provisions of the Indenture and delivered in exchange
for Series H
21
Notes in accordance with the Indenture and the Exchange Offer, the
Guarantees of the Exchange Notes by the Subsidiary Guarantors will be
entitled to the benefits of the Indenture and will be valid and binding
obligations of the Subsidiary Guarantors, enforceable in accordance with
their terms except as (x) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally, (y) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability
and (z) other customary limitations and exceptions for opinions of such
type.
(g) Legends. The following legends shall appear on the face of all
Global Notes and Certificated Notes issued under the Indenture unless
specifically stated otherwise in the applicable provisions of the
Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Certificated Note (and all 9 1/2% Notes issued in
exchange therefor or substitution thereof) shall bear the legend in
substantially the following form:
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT AS SET FORTH BELOW. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE
EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY GUARAN TOR WHOLLY OWNED BY THE
COMPANY OR ANY OF THEIR RESPECTIVE WHOLLY OWNED SUBSIDIARIES, (B) TO A PERSON
WHO IS A QIB PURCHAS ING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES
THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED FROM
THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO
22
THE COMPANY THAT SUCH TRANSFER IS EXEMPT UNDER THE SECURITIES ACT, (E) OUTSIDE
THE UNITED STATES IN A TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 904 OF
THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY), OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT AND, IN EACH CASE, IN ACCOR DANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION; AND
(2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE AS TO THE ABOVE RESTRICTIONS.
(B) Notwithstanding the foregoing, any Global Note or
Certificated Note issued pursuant to subparagraphs (b)(iv), (c)(ii),
(c)(iii), (d)(ii), (d)(iii), (e)(ii), (e)(iii) or (f) to this Section 5.01
(and all 9 1/2% Notes issued in exchange therefor or substitution thereof)
shall not bear the Private Placement Legend.
(ii) Global Note Legend. To the extent required by the Depository,
each Global Note shall bear a legend in substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE
GOVERNING THIS GLOBAL NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 5.01 OF THE NINTH
SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT
NOT IN PART PURSUANT TO SECTION 5.01(a) OF THE NINTH SUPPLEMENTAL
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCES SOR DEPOSITORY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(h) Cancellation and/or Adjustment of Global Notes. At such time as
all beneficial interests in a particular Global Note have been exchanged for
Certificated Notes or a particular Global Note has been redeemed, repurchased or
cancelled in whole and not in part, each such Global Note shall be returned to
or
23
retained and cancelled by the Trustee in accordance with Section 2.12 of the
Indenture. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note or
for Certificated Notes, the principal amount of 9 1/2% Notes represented by such
Global Note shall be reduced accordingly and an endorsement shall be made on
such Global Note by the Trustee or by the Depository at the direction of the
Trustee to reflect such reduction; and if the beneficial interest is being
exchanged for or transferred to a Person who will take delivery thereof in the
form of a beneficial interest in another Global Note, such other Global Note
shall be increased accordingly and an endorsement shall be made on such Global
Note by the Trustee or by the Depository at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes and
Certificated Notes upon receipt of a Company Order.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Certificated Note for any
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections 2.11,
3.6, 4.12 and 10.1 of the Indenture).
(iii) The Registrar shall not be required to register the transfer
of or exchange any 9 1/2% Note selected for redemption in whole or in part,
except the unredeemed portion of any 9 1/2% Note being redeemed in part.
(iv) All Global Notes and Certificated Notes issued upon any
registration of transfer or exchange of Global Notes or Certificated Notes shall
be the valid obligations of the Company, evidencing the same Indebtedness, and
entitled to the same benefits under the Indenture, as the Global Notes or
Certificated Notes surrendered upon such registration of transfer or exchange.
(v) Prior to due presentment for the registration of a transfer
of any 9 1/2% Note, the Trustee, any Agent and the Company may deem and treat
the Person in whose name any 9 1/2% Note is registered as the absolute owner of
such 9 1/2% Note for the purpose of receiving payment of principal of and
interest on such 9 1/2% Notes and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the contrary.
24
(vi) The Trustee shall authenticate Global Notes and Certificated
Notes in accordance with the provisions of Section 2.3 of the Indenture.
(vii) All certifications, certificates and Opinions of Counsel
required to be submitted to the Registrar pursuant to this Section 5.01 to
effect a registration of transfer or exchange may be submitted by facsimile.
Notwithstanding anything herein to the contrary, as to any
certifications and certificates delivered to the Registrar pursuant to this
Section 5.01, the Registrar's duties shall be limited to confirming that any
such certifications and certificates delivered to it are substantially in the
form of Exhibits A, B, C and D attached to this Ninth Supplemental Indenture.
The Registrar shall not be responsible for confirming the truth or accuracy of
representations made in any such certifications or certificates.
ARTICLE 6
Section 6.1 Except as specifically modified herein, the Indenture is in
all respects ratified and confirmed and shall remain in full force and effect in
accordance with its terms.
Section 6.2 Except as otherwise expressly provided herein, no duties,
responsibilities or liabilities are assumed or shall be construed to be assumed
by the Trustee by reason of this Ninth Supplemental Indenture. This Ninth
Supplemental Indenture is executed and accepted by the Trustee subject to all
the terms and conditions set forth in the Indenture with the same force and
effect as if those terms and conditions were repeated at length herein and made
applicable to the Trustee with respect to this Ninth Supplemental Indenture.
Section 6.3 The Trustee shall not be responsible in any manner whatsoever
for or in respect of the recitals contained herein, all of which recitals are
made solely by the Company and the Subsidiary Guarantors.
Section 6.4 THIS NINTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b). EACH OF THE
COMPANY AND THE SUBSIDIARY GUARANTORS HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING
25
ARISING OUT OF OR RELATING TO THE INDENTURE AND THE SECURITIES, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH OF THE COMPANY AND
THE SUBSIDIARY GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH THEY MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY SECURITYHOLDER TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST THE COMPANY AND THE SUBSIDIARY GUARANTORS IN ANY OTHER
JURISDICTION.
Section 6.5 The parties may sign any number of copies of this Ninth
Supplemental Indenture. Each signed copy shall be an original, but all of such
executed copies together shall represent the same agreement.
Section 6.6 All capitalized terms used in this Ninth Supplemental
Indenture which are not otherwise defined herein, shall have the respective
meanings specified in the Indenture, unless the context otherwise requires.
Section 6.7 The 9 1/2% Notes may be issued in whole or in part in the
form of one or more Global Securities, registered in the name of Cede & Co., as
nominee of The Depository Trust Company ("DTC").
26
IN WITNESS WHEREOF, the parties to this Ninth Supplemental Indenture have
caused this Ninth Supplemental Indenture to be duly executed, all as of the date
first written above.
COMPANY
-------
HOST MARRIOTT, L.P.
By: _____________________________________
Name:
Title:
SUBSIDIARY GUARANTORS
---------------------
AIRPORT HOTELS LLC,
HOST OF BOSTON, LTD.,
HOST OF HOUSTON, LTD,
HOST OF HOUSTON 1979,
CHESAPEAKE FINANCIAL SERVICES LLC,
CITY CENTER INTERSTATE PARTNERSHIP LLC,
HMC RETIREMENT PROPERTIES, L.P.,
BY: DURBIN LLC
HMH MARINA LLC,
FARRELL'S ICE CREAM PARLOUR RESTAURANTS LLC,
HMC ATLANTA LLC,
HMC BCR HOLDINGS LLC,
HMC BURLINGAME LLC,
HMC CALIFORNIA LEASING LLC,
HMC CAPITAL LLC,
HMC CAPITAL RESOURCES LLC,
HMC PARK RIDGE LLC,
HMC PARTNERSHIP HOLDINGS LLC,
HOST PARK RIDGE LLC,
HMC SUITES LLC,
HMC SUITES LIMITED PARTNERSHIP,
BY: HMC SUITES LLC
PRM LLC,
WELLSFORD-PARK RIDGE HMC HOTEL LIMITED PARTNERSHIP,
BY: HOST PARK RIDGE LLC
YBG ASSOCIATES LLC,
HMC CHICAGO LLC,
HMC DESERT LLC,
HMC PALM DESERT LLC,
MDSM FINANCE LLC,
HMC DIVERSIFIED LLC,
HMC EAST SIDE II LLC,
HMC GATEWAY LLC,
HMC GRAND LLC,
HMC HANOVER LLC,
HMC HARTFORD LLC,
HMC HOTEL DEVELOPMENT LLC,
HMC HPP LLC,
HMC IHP HOLDING LLC,
HMC MANHATTAN BEACH LLC,
HMC MARKET STREET LLC,
NEW MARKET STREET LP,
BY: HMC MARKET STREET LLC
HMC GEORGIA LLC,
HMC MEXPARK LLC,
HMC POLANCO LLC,
HMC NGL LLC,
HMC OLS I L.P.,
BY: HMC OLS I LLC
HMC OP BN LLC,
HMC PACIFIC GATEWAY LLC,
HMC PLP LLC,
CHESAPEAKE HOTEL LIMITED PARTNERSHIP,
BY: HMC PLP LLC
HMC POTOMAC LLC,
HMC PROPERTIES I LLC,
HMC PROPERTIES II LLC,
HMC RTZ LOAN I LLC,
HMC RTZ II LLC,
HMC SBM TWO LLC,
HMC SEATTLE LLC,
HMC SFO LLC,
HMC SWISS HOLDINGS LLC,
HMC WATERFORD LLC,
HMH GENERAL PARTNER HOLDINGS LLC,
HMH NORFOLK LLC,
HMH NORFOLK, L.P.,
BY: HMH NORFOLK LLC
HMH PENTAGON LLC,
HMH RESTAURANTS LLC,
HMH RIVERS LLC,
HMH RIVERS, L.P.,
BY: HMH RIVERS LLC
HMH WTC LLC,
HMP CAPITAL VENTURES LLC,
HMP FINANCIAL SERVICES LLC,
HOST LA JOLLA LLC,
CITY CENTER HOTEL LIMITED PARTNERSHIP,
BY: HOST LA JOLLA LLC
TIMES SQUARE LLC,
IVY STREET LLC,
MARKET STREET HOST LLC,
MFR OF ILLINOIS LLC,
MFR OF VERMONT LLC,
MFR OF WISCONSIN LLC,
PHILADELPHIA AIRPORT HOTEL LLC,
PM FINANCIAL LLC,
PM FINANCIAL LP,
BY: PM FINANCIAL LLC
HMC PROPERTY LEASING LLC,
HMC HOST RESTAURANTS LLC,
SANTA CLARA HMC LLC,
S.D. HOTELS LLC,
TIMES SQUARE GP LLC,
DURBIN LLC,
HMC HT LLC,
HMC JWDC GP LLC,
HMC JWDC LLC,
HMC OLS I LLC,
HMC OLS II L.P.,
BY: HMC OLS I LLC
HMT LESSEE PARENT, LLC,
HMC/INTERSTATE ONTARIO, L.P.,
BY: HMC PARTNERSHIP HOLDINGS LLC
HMC/INTERSTATE MANHATTAN BEACH, L.P.,
BY: HMC MANHATTAN BEACH LLC
HOST/INTERSTATE PARTNERSHIP, L.P.,
BY: CITY CENTER INTERSTATE PARTNERSHIP LLC
HMC/INTERSTATE WATERFORD, L.P.,
BY: HMC WATERFORD LLC
AMELIATEL,
HMC AMELIA I, LLC,
HMC AMELIA II, LLC,
ROCKLEDGE HOTEL LLC,
FERNWOOD HOTEL LLC,
By: _____________________________________
Name:
Title:
TRUSTEE
-------
HSBC BANK USA,
as Trustee
By: _____________________________________
Name:
Title:
EXHIBIT A
FORM OF 9 1/2%[SERIES H] [SERIES I]/1/ SENIOR NOTE
Unless and until it is exchanged in whole or in part for 9 1/2% Notes
in definitive form, this Security may not be transferred except as a whole by
the Depository to a nominee of the Depository or by a nominee of the Depository
to the Depository or another nominee of the Depository or by the Depository or
any such nominee to a successor Depository or a nominee of such successor
Depository. Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) ("DTC"),
to the Company or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or such other
name as requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein./2/
HOST MARRIOTT, L.P.
9 1/2% [SERIES H] [SERIES I]/3/ SENIOR NOTE DUE 2007
CUSIP:
ISIN:
No. $
Host Marriott, L.P., a Delaware limited partnership (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________, or registered assigns, the principal sum of $____________, on
January 15, 2007. This Security is one of the 9 1/2% [Series H] [Series I]
Senior Notes due 2007 referred to in such Indenture (hereinafter referred to for
purposes of this 9 1/2% Senior Note collectively as the "9 1/2% Securities").
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
___________________
/1/ Series H should be replaced with Series I in the Exchange Notes.
/2/ To be used only if the Security is issued as a Global Note.
/3/ Series H should be replaced with Series I in the Exchange Notes.
A-1
Reference is made to the further provisions of this Security on the reverse
side, which will, for all purposes, have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Instrument to be duly
executed.
Dated:
HOST MARRIOTT, L.P.,
a Delaware limited partnership
By: __________________________
Name:
Title:
Attest: __________________________
Name:
Title:
A-2
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 9 1/2% Securities of the Series designated therein
referred to in the within-mentioned Indenture.
HSBC BANK USA,
as Trustee
By:_________________________
Authorized Signatory
HOST MARRIOTT, L.P.
9 1/2% [Series H] [Series I]/4/ Senior Note due 2007
THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 5.01 OF THE NINTH SUPPLEMEN TAL INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 5.01(a) OF
THE NINTH SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.12 OF THE INDENTURE AND (IV) THIS
GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY./5/
THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT AS SET FORTH BELOW. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) AGREES THAT IT WILL NOT RESELL OR OTHERWISE TRANSFER THIS NOTE EXCEPT
(A) TO THE COMPANY OR ANY SUBSIDIARY GUARANTOR WHOLLY OWNED BY THE COMPANY OR
ANY OF THEIR RESPECTIVE WHOLLY OWNED SUBSIDIARIES, (B) TO A PERSON WHO IS A QIB
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (C) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (D) TO AN INSTITUTIONAL
"ACCREDITED INVESTOR" (AS DEFINED IN RULE 501(A)(1), (2), (3) OR (7) OF REGULA
TION D UNDER THE SECURITIES ACT) THAT, PRIOR TO SUCH TRANSFER, FURNISHES THE
TRUSTEE A SIGNED LETTER CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
RELATING TO THE TRANSFER OF THIS NOTE (THE FORM OF WHICH CAN BE OBTAINED
________________
/4/ Series H should be replaced with Series I in the Exchange Notes.
/5/ To be included only on Global Notes deposited with DTC as Depository.
A-4
FROM THE TRUSTEE) AND, IF SUCH TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL
AMOUNT OF NOTES LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY THAT SUCH TRANSFER IS EXEMPT UNDER THE SECURITIES ACT, (E) OUTSIDE THE
UNITED STATES IN A TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 904 UNDER
THE SECURITIES ACT, (F) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF
COUNSEL ACCEPT ABLE TO THE COMPANY), OR (G) PURSUANT TO AN EFFECTIVE REGIS
TRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION; AND
(2) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE OR AN
INTEREST HEREIN IS TRANSFERRED A NOTICE AS TO THE ABOVE RESTRICTIONS./6/
1. Interest.
--------
Host Marriott, L.P., a Delaware limited partnership (hereinafter
called the "Company," which term includes any successors under the Indenture
hereinafter referred to), promises to pay interest on the principal amount of
this Security at the rate of 9 1/2% per annum from December 14, 2001 until
maturity. To the extent it is lawful, the Company promises to pay interest on
any interest payment due but unpaid on such principal amount at a rate of 9 1/2%
per annum compounded semi-annually.
The Company will pay interest semi-annually on January 15 and July 15
of each year (each, an "Interest Payment Date"), commencing July 15, 2002.
Interest on the 9 1/2% Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the 9 1/2%
Securities, from the date of the original issuance. Interest will be computed
on the basis of a 360-day year consisting of twelve 30-day months.
2. Method of Payment.
-----------------
The Company shall pay interest on the 9 1/2% Securities (except
defaulted interest) to the Persons who are the registered Holders at the close
of business on the Record Date immediately preceding the Interest Payment Date.
Holders must surrender 9 1/2% Securities to a Paying Agent to collect principal
payments. Principal of, premium, if any, and interest on the 9 1/2% Securities
will be payable in United States Dollars at the office or agency of the Company
maintained for such purpose,
___________
/6/ To be included only on Transfer Restricted Notes.
A-5
in the Borough of Manhattan, The City of New York or at the option of the
Company, payment of interest may be made by check mailed to the Holders of the 9
1/2% Securities at the addresses set forth upon the registry books of the
Company; provided, however, Holders of Global Securities will be entitled to
receive interest payments (other than at maturity) by wire transfer of
immediately available funds, if appropriate wire transfer instructions have been
received in writing by the Trustee not fewer than 15 days prior to the
applicable Interest Payment Date. Such wire instructions, upon receipt by the
Trustee, shall remain in effect until revoked by such Holder. No service charge
will be made for any registration of transfer or exchange of 9 1/2% Securities,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection therewith.
3. Paying Agent and Registrar.
--------------------------
Initially, HSBC Bank USA will act as Paying Agent and Registrar. The
Company may change any Paying Agent, Registrar or co-Registrar without notice to
the Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Paying Agent, Registrar or co-Registrar.
4. Indenture.
---------
The Company issued the 9 1/2% Securities and the Subsidiary Guarantors
issued their Guarantees under an Amended and Restated Indenture, dated as of
August 5, 1998, as supplemented (the "Indenture"), between the Company, its
Parents, the Subsidiary Guarantors and the Trustee. Capitalized terms herein
are used as defined in the Indenture unless otherwise defined herein. The 9
1/2% Securities are limited in aggregate principal amount to $450,000,000. The
terms of the 9 1/2% Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
in effect on the date of the Indenture. The 9 1/2% Securities are subject to
all such terms, and Holders of 9 1/2% Securities are referred to the Indenture
and said Act for a statement of them. The 9 1/2% Securities are senior, general
obligations of the Company, secured initially by a pledge of Capital Stock of
certain Subsidiaries of the Company, which pledge is shared equally and ratably
with the Credit Facility, the Existing Senior Notes, the Series A Notes, the
Series B Notes, the Series C Notes, the Series E Notes, the Series G Notes and
certain future Indebtedness of the Company ranking pari passu with the 9 1/2%
Securities. Each Holder of this Security, by accepting the same, (a) agrees to
and shall be bound by the provisions of the Indenture, (b) authorizes and
directs the Trustee on his behalf to take such action as may be provided in the
Indenture and (c) appoints the Trustee his attorney-in-fact for such purpose.
5. Redemption.
----------
The Company may redeem the 9 1/2% Securities in whole but not in part
at any time at a Redemption Price equal to 100% of the principal amount thereof
plus
A-6
the Make-Whole Premium, together with accrued and unpaid interest thereon, if
any, to the applicable Redemption Date. Notice of a redemption of the 9 1/2%
Securities made pursuant to this paragraph 5 shall be given in the manner set
forth in Section 3.3 of the Indenture; provided, however, that any such notice
need not set forth the Redemption Price but need only set forth the calculation
thereof as described in the immediately preceding paragraph of this paragraph 5.
The Redemption Price, calculated as aforesaid, shall be set forth in an
Officer's Certificate delivered by the Company to the Trustee no later than one
Business Day prior to the Redemption Date. The 9 1/2% Securities will not have
the benefit of a sinking fund.
6. Denominations; Transfer; Exchange.
---------------------------------
The 9 1/2% Securities are in registered form, without coupons, in
denominations of $1,000 and integral multiples of $1,000. A Holder may register
the transfer of, or exchange 9 1/2% Securities in accordance with, the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer of or exchange any 9 1/2% Securities (a) selected for redemption
except the unredeemed portion of any Security being redeemed in part or (b) for
a period beginning 15 Business Days before the mailing of a notice of an offer
to repurchase or redemption and ending at the close of business on the day of
such mailing.
7. Persons Deemed Owners.
---------------------
The registered Holder of a Security may be treated as the owner of it
for all purposes.
8. Unclaimed Money.
---------------
If money for the payment of principal or interest remains unclaimed
for two years, the Trustee and the Paying Agent(s) will pay the money back to
the Company at its written request. After that, all liability of the Trustee
and such Paying Agent(s) with respect to such money shall cease.
9. Discharge Prior to Redemption or Maturity.
-----------------------------------------
Except as set forth in the Indenture, if the Company irrevocably
deposits with the Trustee, in trust, for the benefit of the Holders, U.S. legal
tender, U.S. Government Obligations or a combination thereof, in such amounts as
will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest on such 9 1/2% Securities on the stated date for payment thereof or on
the redemption date of such principal or installment of principal of, premium,
if any, or interest on such 9 1/2% Securities, the Company will be discharged
from certain provisions of the Indenture
A-7
and the 9 1/2% Securities (including the restrictive covenants described in
paragraph 11 below, but excluding its obligation to pay the principal of,
premium, if any, and interest on the 9 1/2% Securities). Upon satisfaction of
certain additional conditions set forth in the Indenture, the Company may elect
to have its obligations and the obligations of the Subsidiary Guarantors
discharged with respect to outstanding 9 1/2% Securities.
10. Amendment; Supplement; Waiver.
-----------------------------
The Company, the Subsidiary Guarantors and the Trustee may enter into a
supplemental indenture for certain limited purposes without the consent of the
Holders. Subject to certain exceptions, the Indenture or the 9 1/2% Securities
may be amended or supplemented with the written consent of the Holders of not
less than a majority in aggregate principal amount of the 9 1/2% Securities then
outstanding (except that any amendments or supplements to the provisions
relating to security interests or with respect to the Guarantees of the
Subsidiary Guarantors shall require the consent of the holders of not less than
66 2/3% of the aggregate principal amount of the 9 1/2% Securities then
outstanding), and any existing Default or Event of Default or compliance with
any provision may be waived with the consent of the Holders of a majority in
aggregate principal amount of the 9 1/2% Securities then outstanding. Without
notice to or consent of any Holder, the parties thereto may under certain
circumstances amend or supplement the Indenture or the 9 1/2% Securities to,
among other things, cure any ambiguity, defect or inconsistency, or make any
other change that does not adversely affect the rights of any Holder of a
Security.
11. Restrictive Covenants.
---------------------
The Indenture imposes certain limitations on the ability of the
Company, the Subsidiary Guarantors and any of their respective Restricted
Subsidiaries to, among other things, incur additional Indebtedness and issue
Disqualified Stock, pay dividends or make certain other Restricted Payments,
enter into certain transactions with Affiliates, incur Liens, sell assets and
subsidiary stock, merge or consolidate with any other Person or transfer (by
lease, assignment or otherwise) substantially all of the properties and assets
of the Company. The limitations are subject to a number of important
qualifications and exceptions and certain restrictive covenants will cease to be
applicable under certain circum stances. The Company must periodically report
to the Trustee on compliance with such limitations.
12. Repurchase at Option of Holder.
------------------------------
(a) If there is a Change of Control Triggering Event, the Company
shall be required to offer irrevocably to purchase on the Change of Control
Purchase Date all outstanding 9 1/2% Securities at a purchase price equal to
101% of the principal amount thereof, plus (subject to the right of Holders of
record on a Record Date that
A-8
is on or prior to such Change of Control Purchase Date to receive interest due
on the Interest Payment Date to which such Record Date relates) accrued and
unpaid interest, if any, to the Change of Control Purchase Date. Holders of 9
1/2% Securities will receive a Change of Control Offer from the Company prior to
any related Change of Control Purchase Date and may elect to have such 9 1/2%
Securities purchased by completing the form entitled "Option of Holder to Elect
Purchase" appearing below.
(b) The Indenture imposes certain limitations on the ability of the
Company, the Subsidiary Guarantors or any of their respective Restricted
Subsidiaries to sell assets and subsidiary stock. In the event the Net Cash
Proceeds from a permitted Asset Sale exceed certain amounts, as specified in the
Indenture, the Company will be required either to reinvest the proceeds of such
Asset Sale in a Related Business or other permitted investments, repay certain
Indebtedness or to make an offer to purchase each Holder's 9 1/2% Securities at
100% of the principal amount thereof, plus accrued interest, if any, to the
purchase date. The limitations and the Company's obligations with respect to
the use of proceeds from an Asset Sale are subject to a number of important
qualifications and exceptions and will cease to be applicable under certain
circumstances.
13. Notation of Guarantee.
---------------------
As set forth more fully in the Indenture, the Persons constituting
Subsidiary Guarantors from time to time, in accordance with the provisions of
the Indenture, irrevocably and unconditionally and jointly and severally
guarantee, in accordance with Section 12.1 of the Indenture, to the Holders and
to the Trustee and its successors and assigns, that (i) the principal of and
interest on the 9 1/2% Securities will be paid, whether at the Stated Maturity
or Interest Payment Dates, by acceleration, call for redemption or otherwise,
and all other obligations of the Company to the Holders or the Trustee under the
Indenture or this Security will be promptly paid in full or performed, all in
accordance with the terms of the Indenture and this Security, and (ii) in the
case of any extension of payment or renewal of this Security or any of such
other obligations, they will be paid in full when due or performed in accordance
with the terms of such extension or renewal, whether at the Stated Maturity, as
so extended, by acceleration or otherwise. Such Guarantees shall cease to
apply, and shall be null and void, with respect to any such guarantor who,
pursuant to Article 12 of the Indenture, is released from its Guarantees, or
whose Guarantees otherwise cease to be applicable pursuant to the terms of the
Indenture.
14. Successor
---------
When a successor assumes all the obligations of its predecessor under the 9
1/2% Securities and the Indenture, the predecessor will be released from those
obligations.
A-9
15. Defaults and Remedies.
---------------------
If an Event of Default with respect to the 9 1/2% Securities occurs and is
continuing (other than an Event of Default relating to bankruptcy, insolvency or
reorganization of the Company), then either the Trustee or the Holders of 25% in
aggregate principal amount of the 9 1/2% Securities then outstanding may declare
all 9 1/2% Securities to be due and payable immediately in the manner and with
the effect provided in the Indenture. Holders of 9 1/2% Securities may not
enforce the Indenture or the 9 1/2% Securities, except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the 9 1/2% Securities. Subject to certain limitations,
Holders of a majority in principal amount of the then outstanding 9 1/2%
Securities may direct the Trustee in its exercise of any trust or power with
respect to such 9 1/2% Securities. The Trustee may withhold from Holders of 9
1/2% Securities notice of any continuing Default or Event of Default (except a
Default in payment of principal or interest) if it determines that withholding
notice is in their interest.
16. Trustee and Agent Dealings with Company.
---------------------------------------
The Trustee and each Agent under the Indenture, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or any Subsidiary Guarantor or any of their
Subsidiaries or any of their respective Affiliates, and may otherwise deal with
such Persons as if it were not the Trustee or such agent.
17. No Recourse Against Others.
--------------------------
No recourse for the payment of the principal of, premium, if any, or
interest on the 9 1/2% Securities or for any claim based thereon or otherwise in
respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company or the Subsidiary Guarantors in the Indenture, or in
the 9 1/2% Securities or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporator, partner, stockholder, officer,
director, employee or controlling Person of the Company or the Subsidiary
Guarantors or of any successor Person thereof, except as an obligor or guarantor
of the 9 1/2% Securities pursuant to the Indenture. Each Holder, by accepting
the 9 1/2% Securities, waives and releases all such liability.
18. Authentication.
--------------
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Security.
A-10
19. Abbreviations and Defined Terms.
-------------------------------
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
20. CUSIP Numbers.
-------------
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company will cause CUSIP numbers to be
printed on the 9 1/2% Securities as a convenience to the Holders of the 9 1/2%
Securities. No representation is made as to the accuracy of such numbers as
printed on the 9 1/2% Securities and reliance may be placed only on the other
identification numbers printed hereon.
21. Additional Rights of Holders of Transfer Restricted Notes./7/
---------------------------------------------------------
In addition to the rights provided to Holders of 9 1/2% Securities under
the Indenture, Holders of Transfer Restricted Notes shall have all the rights
set forth in the Registration Rights Agreement dated as of the date of the Ninth
Supplemental Indenture, among the Company, the Subsidiary Guarantors and the
Initial Purchasers.
22. Governing Law.
-------------
THE INDENTURE AND THE 9 1/2% SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING,
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
_________________________
/7/ To be included only on Transfer Restricted Notes.
A-11
[FORM OF ASSIGNMENT]
I or we assign this Security to
____________________________________________________________________
____________________________________________________________________
____________________________________________________________________
(Print or type name, address and zip code of assignee)
Please insert Social Security or other identifying number of assignee
_______________________________
and irrevocably appoint __________ agent to transfer this Security on the books
of the Company. The agent may substitute another to act for him.
Dated: _______________ Signed:
(Sign exactly as name appears on
the other side of this Security)
Signature Guarantee**
____________________
**
NOTICE: The Signature must be guaranteed by an Institution which is a member
of one of the following recognized signature Guarantee Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York Stock
Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion Program
(SEMP); or (iv) in such other guarantee program acceptable to the Trustee.
A-12
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.12 or Article 10 of the Indenture, check the appropriate
box:
[_] Section 4.12
[_] Article 10.
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.12 or Article 10 of the Indenture, as the case
may be, state the amount you want to be purchased: $________.
Date: ________________ Signature:
(Sign exactly as your name appears
on the other side of this Security)
Signature Guarantee***
____________
*** NOTICE: The Signature must be guaranteed by an Institution which is a
member of one of the following recognized signature Guarantee Programs: (i)
The Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MNSP); (iii) The Stock Exchange Medallion
Program (SEMP); or (iv) in such other guarantee program acceptable to the
Trustee.
A-13
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTES/8/
The following exchanges of a part of this Global Security for
Certificated Securities have been made:
Date of Exchange Amount of decrease Amount of increase in Principal Amount of this Signature of authorized
in Principal Amount of this Global Note following such officer of Trustee or Note
Principal Amount Global Note decrease (or increase) Custodian
of this Global Note
- ------------------------------------------------------------------------------------------------------------------------------
______________
8 This should be included only if the Security is issued in global form.
A-14
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Host Marriott, L.P.
10400 Fernwood Road
Bethesda, Maryland 20817
Attention: Chief Financial Officer
HSBC Bank USA
140 Broadway, 12th Floor
New York, New York 10005-1180
Attention: Corporate Trust Department
Re: 9 1/2% Series H Senior Notes due 2007
Dear Sirs:
Reference is hereby made to the Amended and Restated Indenture, dated as of
August 5, 1998 (the "Base Indenture"), among HMH Properties, Inc., its Parents
and the Subsidiary Guarantors named therein (collectively, the "Subsidiary
Guarantors") and HSBC Bank USA (formerly Marine Midland Bank), as trustee (the
"Trustee"), and the Ninth Supplemental Indenture to the Base Indenture, dated as
of December 14, 2001 (the "Ninth Supplemental Indenture" and, together with the
Base Indenture, the "Indenture"), among Host Marriott, L.P., as issuer (the
"Company"), the Subsidiary Guarantors and the Trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
______________, (the "Transferor") owns and proposes to transfer the Note[s] or
interest in such Note[s] specified in Annex A hereto, in the principal amount of
$___________ in such Note[s] or interests (the "Transfer"), to __________ (the
"Transferee"), as further specified in Annex A hereto. In connection with the
Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. [_] Check if Transferee will take delivery of a beneficial interest in a
Rule 144A Restricted Global Note or a Certificated Note Pursuant to Rule 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Certificated Note is being transferred to a Person that
the Transferor reasonably believed and believes is purchasing the beneficial
interest or Certificated Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and such
Person and each such account is a "qualified institutional buyer" within the
meaning of Rule 144A in a transaction meeting the requirements of Rule 144A and
such Transfer is in compliance with any applicable blue sky securities laws of
any State of the United States and the restrictions set forth in the Private
Placement Legend. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Certificated
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Note and/or the Certificated
Note and in the Indenture and the Securities Act.
1A. [_] Check if Transferee will take delivery of a beneficial interest in a
Regulation S Restricted Global Note or a Certificated Note Pursuant to
Regulation S. The Transfer is being effected pursuant to and in accordance with
Regulation S under the United States Securities Act, and, accordingly, the
Transferor hereby further certifies that:
B-1
(a) the offer of the beneficial interest or Certificated Note
being transferred was not made to a person in the United States;
(b) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the Transferor and
any person acting on its behalf reasonably believed that the
Transferee was outside the United States; or
(ii) the transaction was executed in, on or
through the facilities of a designated offshore securities market
and neither the Transferor nor any person acting on its behalf
knows that the transaction was prearranged with a buyer in the
United States;
(c) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable; and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
and such Transfer is in compliance with any applicable blue sky securities laws
of any State of the United States and the restrictions set forth in the Private
Placement Legend. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Certificated
Note will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Note and/or the Certificated
Note and in the Indenture and the Securities Act.
2. [_] Check and complete if Transferee will take delivery of a beneficial
interest in a Restricted Certificated Note pursuant to any provision of the
Securities Act other than Rule 144A or Regulation S. The Transfer is being
effected in compliance with the transfer restrictions applicable to beneficial
interests in Restricted Global Notes and Restricted Certificated Notes and
pursuant to and in accordance with the Securities Act and any applicable blue
sky securities laws of any State of the United States, and accordingly the
Transferor hereby further certifies that (check one):
(a) [_] Such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act; or
(b) [_] Such Transfer is being effected to the Company or a
subsidiary thereof; or
(c) [_] Such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance
with the prospectus delivery requirements of the Securities Act; or
(d) [_] such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the
registration requirements of the Securities Act other than Rule
144A, or Rule 144, and the Transferor hereby further certifies that
it has not engaged in any general solicitation within the meaning of
Regulation D under the Securities Act and the Transfer complies with
the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Certificated Notes (including
those set forth in the Private Placement Legend) and the
requirements of the exemption claimed, which certification is
supported by (1) a certificate executed by the Transferee in a form
of Exhibit D to the Ninth
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Supplemental Indenture and (2) if such Transfer is in respect of a
principal of Series H Notes at the time of transfer of less than
$250,000, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this
certification and provided to the Company, which has confirmed its
acceptability), to the effect that such Transfer is in compliance
with the Securities Act. Upon consummation of the proposed transfer
in accordance with the terms of the Indenture, the Certificated Note
will be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Certificated Notes and in
the Indenture and the Securities Act.
3. [_] Check if Transferee will take delivery of a beneficial interest in
an Unrestricted Global Note or of an Unrestricted Certificated Note.
(a) [_] Check if Transfer is Pursuant to Rule 144. (i) The Transfer is
being effected pursuant to and in accordance with Rule 144 under the Securities
Act and in compliance with the transfer restrictions contained in the Indenture
and any applicable blue sky securities laws of any State of the United States
and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act. Upon consummation of the proposed Transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Certificated
Note will no longer be subject to the restrictions on transfer enumerated in the
Private Placement Legend printed on the Restricted Global Notes, on Restricted
Certificated Notes and in the Indenture and the Securities Act.
(a1) [_] Check if Transfer is Pursuant to Regulation S. (i) The Transfer is
being effected pursuant to and in accordance with Regulation S under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act.
The Transferor hereby further certifies that:
(a) the offer of the beneficial interest or Certificated Note
being transferred was not made to a person in the United States;
(b) either:
(i) at the time the buy order was originated, the
Transferee was outside the United States or the
Transferor and any person acting on its behalf
reasonably believed that the Transferee was outside the
United States; or
(ii) the transaction was executed in, on or
through the facilities of a designated offshore
securities market and neither the Transferor nor any
person acting on its behalf knows that the transaction
was prearranged with a buyer in the United States;
(c) no directed selling efforts have been made in contravention
of the requirements of Rule 903(b) or 904(b) of Regulation S, as
applicable; and
(d) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
B-3
Upon consummation of the proposed Transfer in accordance with the terms of the
Indenture, the transferred beneficial interest or Certificated Note will no
longer be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Global Notes, on Restricted
Certificated Notes and in the Indenture and the Securities Act.
(b) [_] Check if Transfer is Pursuant to Other Exemption. (i) The Transfer
is being effected pursuant to and in compliance with an exemption from the
registration requirements of the Securities Act other than Rule 144 or
Regulation S and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Certificated Note will not be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Global Notes or
Restricted Certificated Notes and in the Indenture.
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This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
_______________________________ Dated: ____________________________
[Insert Name of Transferor]
By: ____________________________
Name:
Title:
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [_] a beneficial interest in a Restricted Global Note
(CUSIP[________]), or
(b) [_] a Restricted Certificated Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [_] a beneficial interest in a/an:
(i) [_] Restricted Global Note (CUSIP[________]), or
(ii) [_] Unrestricted Global Note (CUSIP ________); or
(b) [_] a Restricted Certificated Note; or
(c) [_] an Unrestricted Certificated Note,
in accordance with the terms of the Indenture.
B-6
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Host Marriott, L.P.
10400 Fernwood Road
Bethesda, Maryland 20817
Attention: Chief Financial Officer
HSBC Bank USA
452 Fifth Avenue
New York, New York 10018
Attention: Corporate Trust Department
Re: 9 1/2% Series H Senior Notes due 2007
Dear Sirs:
Reference is hereby made to the Amended and Restated Indenture, dated as of
August 5, 1998 (the "Base Indenture"), among HMH Properties, Inc., its Parents
and the Subsidiary Guarantors named therein (collectively, the "Subsidiary
Guarantors") and HSBC Bank USA (formerly Marine Midland Bank), as trustee (the
"Trustee"), and the Ninth Supplemental Indenture to the Base Indenture, dated as
of December 14, 2001 (the "Ninth Supplemental Indenture" and, together with the
Base Indenture, the "Indenture"), among Host Marriott, L.P., as issuer (the
"Company"), the Subsidiary Guarantors and the Trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
____________, (the "Owner") owns and proposes to exchange the Note[s]
or interest in such Note[s] specified herein, in the principal amount of
$____________ in such Note[s] or interests (the "Exchange"). In connection with
the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Certificated Notes or Beneficial Interests
in a Restricted Global Note for Unrestricted Certificated Notes or Beneficial
Interests in an Unrestricted Global Note
(a) [_] Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global Note. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an
C-1
Unrestricted Global Note is being acquired in compliance with any applicable
blue sky securities laws of any State of the United States.
(b) [_] Check if Exchange is from beneficial interest in a Restricted
Global Note to Unrestricted Certificated Note. In connection with the Exchange
of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Certificated Note, the Owner hereby certifies (i) the Certificated
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the Certificated Note is being
acquired in compliance with any applicable blue sky securities laws of any State
of the United States.
(c) [_] Check if Exchange is from Restricted Certificated Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Certificated Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Certificated Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any State
of the United States.
(d) [_] Check if Exchange is from Restricted Certificated Note to
Unrestricted Certificated Note. In connection with the Owner's Exchange of a
Restricted Certificated Note for an Unrestricted Certificated Note, the Owner
hereby certifies (i) the Unrestricted Certificated Note is being acquired for
the Owner's own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to Restricted
Certificated Notes and pursuant to and in accordance with the Securities Act,
(iii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the Unrestricted Certificated Note is being acquired in
compliance with any applicable blue sky securities laws of any State of the
United States.
2. Exchange of Certificated Notes or Beneficial Interests in Restricted
Global Notes for Restricted Certificated Notes or Beneficial Interests in
Restricted Global Notes
(a) [_] Check if Exchange is from beneficial interest in a Restricted
Global Note to Restricted Certificated Note. In connection with the Exchange of
the Owner's beneficial interest in a Restricted Global Note for a Restricted
Certificated Note with an equal principal amount, the Owner hereby certifies
that the Restricted Certificated Note is being acquired for the Owner's own
account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Certificated Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Certificated Note and in
the Indenture and the Securities Act.
C-2
(b) Check if Exchange is from Restricted Certificated Note or
Unrestricted Certificated Note to beneficial interest in a Restricted Global
Note. In connection with the Exchange of the Owner's Restricted Certificated
Note for a beneficial interest in the Restricted Global Note with an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer and (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, and in compliance with any applicable blue sky securities
laws of any State of the United States. Upon consummation of the proposed
Exchange in accordance with the terms of the Indenture, the beneficial interest
issued will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the relevant Restricted Global Note and in the
Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit
and the benefit of the Company.
__________________________
[Insert Name of Owner]
By:_______________________
Name:
Title:
Dated:________________
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EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Host Marriott, L.P.
10400 Fernwood Road
Bethesda, Maryland 20817
Attention: Chief Financial Officer
HSBC Bank USA
452 Fifth Avenue
New York, New York 10018
Attention: Corporate Trust Department
Re: 9 1/2% Series H Senior Notes due 2007
Dear Sirs:
Reference is hereby made to the Amended and Restated Indenture, dated as of
August 5, 1998 (the "Base Indenture"), among HMH Properties, Inc., its Parents
and the Subsidiary Guarantors named therein (collectively, the "Subsidiary
Guarantors") and HSBC Bank USA (formerly Marine Midland Bank), as trustee (the
"Trustee"), and the Ninth Supplemental Indenture to the Base Indenture, dated as
of December 14, 2001 (the "Ninth Supplemental Indenture" and, together with the
Base Indenture, the "Indenture"), among Host Marriott, L.P., as issuer (the
"Company"), the Subsidiary Guarantors and the Trustee. Capitalized terms used
but not defined herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of: (a) a beneficial interest in a Global Note, or (b) a
Certificated Note, we confirm that:
1. We understand that any subsequent transfer of the Securities or
any interest therein is subject to certain restrictions and conditions set forth
in the Indenture and the undersigned agrees to be bound by, and not to resell,
pledge or otherwise transfer the Securities or any interest therein except in
compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the offer and sale of the Securities have not
been registered under the Securities Act, and that the Securities and any
interest therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Securities or
any interest therein, we will do so only (a) to the Company or any Subsidiary
Guarantor or any of their respective wholly owned subsidiaries, (b) to a person
who is a QIB purchasing for its own account or for the account of a QIB in a
transaction meeting the requirements of Rule 144A, (c) in a transaction meeting
the requirements of a Rule 144 under the Securities Act, (d) to an Institutional
"Accredited
D-1
Investor" (as defined in Rule 501 (a)(1), (2), (3) or (7) of Regulation D under
the Securities Act) that, prior to such transfer, furnishes the trustee a signed
letter containing certain representations and agreements relating to the
transfer of this Security (the form of which can be obtained from the trustee)
and, if such transfer is in respect of an aggregate principal amount of Notes
less than $250,000, an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Securities Act, (e) outside the United States
in a transaction complying with the provisions of Rule 904 under the Securities
Act, (f) in accordance with another exemption from the registration requirements
of the Securities Act, (and based upon an opinion of counsel acceptable to the
Company), or (g) pursuant to an effective registration statement and, in each
case, in accordance with the applicable securities laws of any state of the
United States or any other applicable jurisdiction and in accordance with the
other provisions of the Private Placement Legend.
3. We understand that, on any proposed resale of the Securities or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and the
Company may reasonably require to confirm that the proposed sale complies with
the foregoing restrictions. We further understand that the Securities purchased
by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or its investment.
5. We are acquiring the Securities or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
_______________________________ Dated: __________________, ____
[Insert Name of Accredited Investor]
By:_______________________________
Name:
Title:
D-2