EXHIBIT 4.2
FOURTH SUPPLEMENTAL INDENTURE TO
AMENDED AND RESTATED INDENTURE
FOURTH SUPPLEMENTAL INDENTURE, dated as of February 25, 1999, among HOST
MARRIOTT, L.P., a Delaware limited partnership (the "Company"), the Subsidiary
Guarantors signatory to this Fourth Supplemental Indenture and 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 Fourth
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 8% Series D Senior Notes due 2006 and Subsidiary
Guarantees thereof of the Subsidiary Guarantors (hereinafter, the "Series D
Notes") and (ii) the 8% Series E Senior Notes due 2006 and the Subsidiary
Guarantees thereof of the Subsidiary Guarantors to be exchanged for the Series D
Notes (hereinafter, the "Series E 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, Section 9.1(g) 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 outstanding Securities to provide
for the addition of guarantors to 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 Fourth 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 1.01. Nature of Supplemental Indenture. This Fourth 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 1.02. Establishment of New Series. Pursuant to Section 2.2 of the
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Indenture, there is hereby established the Series D Notes and the Series E Notes
(collectively, the "8 Notes") having the terms, in addition to those set forth
in the Indenture and this Fourth Supplemental Indenture, set forth in the form
of 8 Note, attached to this Fourth Supplemental Indenture as Exhibit A, which is
incorporated herein as a part of this Fourth Supplemental Indenture.
Section 1.03. Redemption. The Company will not have the right to redeem
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any 8 Notes at its option prior to the final maturity thereof.
The 8 Notes will not have the benefit of any sinking fund.
ARTICLE 2
Section 2.01. The term "Subsidiary Guarantors" means, with respect to the
8% 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 8 Notes.
Section 2.02. The second sentence of the definition of "Subsidiary
Guarantee" set forth in Section 1.1 of the Indenture shall read, for purposes of
the 8 Notes, as follows:" Each Subsidiary Guarantee with respect to the 8%
Notes will be a senior obligation of the Subsidiary Guarantor and will be full
and unconditional regardless of the enforceability of the 8% Notes, the Fourth
Supplemental Indenture or the Indenture."
Section 2.03. The following entities shall constitute the "Subsidiary
Guarantors" with respect to the 8% Notes, the Series A Notes, the Series B Notes
and the Series C Notes until such time as their guarantees are released in
accordance with the terms of the Indenture:
(1) HMH Rivers, L.P. (successor to HMH Rivers, Inc.);
(2) HMH Marina LLC (successor to HMH Marina, Inc.);
(3) HMC SBM Two LLC (successor to Marriott SBM Two Corporation);
(4) HMC PLP LLC (successor to Marriott PLP Corporation);
(5) HMC Retirement Properties, L.P. (successor to HMC Retirement
Properties, Inc.
(6) HMH Pentagon LLC (successor to HMH Pentagon Corporation);
(7) HMH SFO LLC (successor to HMC SFO, Inc.);
(8) Airport Hotels LLC (successor to Host Airport Hotels, Inc.);
(9) Chesapeake Financial Services LLC (successor to Marriott Financial
Services, Inc.);
(10) HMC Capital Resources LLC (successor to Marriott Capital Resources
Corp. and Marriott SBM One Corporation);
(11) YBG Associates LLC;
(12) PRM LLC (successor to PRM Corporation);
(13) Host Park Ridge LLC (successor to Marriott Park Ridge Corporation);
(14) Host of Boston, Ltd.
(15) Host of Houston, Ltd.
(16) Host of Houston 1979
(17) Philadelphia Airport Hotel LLC
(18) HMC Retirement Properties, LLC
(19) HMC Hartford LLC
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(20) HMH Norfolk LLC
(21) HMH Norfolk, L.P.
(22) HMC Park Ridge LLC
(23) HMC Park Ridge 11 LLC
(24) HMC Park Ridge LP
(25) HMC Partnership Holdings LLC
(26) HMC Suites LLC
(27) Marriott Suites Limited Partnership
(28) Wellsford-Park Ridge Marriott Hotel Limited Partnership
(29) City Center Interstate Partnership LLC
(30) Farrell's Ice Cream Parlor Restaurants LLC
(31) HMC Burlingame LLC
(32) HMC California Leasing LLC
(33) HMC Capital LLC
(34) HMC Grand LLC
(35) HMC Hotel Development LLC
(36) HMC Mexpark LLC
(37) HMC Polanco LLC
(38) HMC NGL LLC
(39) HMC OLS I L.P.
(40) HMC RTZ Loan I LLC
(41) HMC RTZ II LLC
(42) HMC Seattle LLC
(43) HMC Swiss Holdings LLC
(44) HMC Waterford LLC
(45) HMH Restaurants LLC
(46) HMH Rivers LLC
(47) HMH WTC LLC
(48) HMP Capital Ventures LLC
(49) HMP Financial Services LLC
(50) Host La Jolla LLC
(51) City Center Hotel Limited Partnership
(52) MFR of Illinois LLC
(53) MFR of Vermont LLC
(54) MFR of Wisconsin LLC
(55) HMC Marquis LLC
(56) PM Financial LLC
(57) PM Financial LP
(58) HMC Chicago LLC
(59) HMC HPP LLC
(60) HMC Desert LLC
(61) HMC Hanover LLC
(62) HMC Diversified LLC
(63) HMC Properties I LLC
(64) HMC Potomac LLC
(65) HMC East Side II LLC
(66) HMC Manhattan Beach LLC
(67) Chesapeake Hotel Limited Partnership
(68) HMH General Partner Holdings LLC
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(69) HMC IHP Holding LLC
(70) HMC OP BN LLC
(71) S.D. Hotels LLC
(72) HMC Gateway LLC
(73) HMC Pacific Gateway LLC
(74) HMC Desert Springs LLC
(75) MDSM Finance LLC
(76) Market Street Marriott LLC
(77) HMC Market Street LLC
(78) New Market Street LP
(79) Times Square LLC
(80) Times Square GP LLC
(81) Saga Property Leasing LLC
(82) Saga Restaurants LLC
(83) HMC Atlanta LLC
(84) Ivy Street LLC
(85) HMC Properties II LLC
(86) Santa Clara HMC LLC
By execution of this Fourth 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 3.01. Subject to the further provisions of this Article 3, the
covenants set forth in Article 4 of the Indenture shall be applicable to the 8
3/8% 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 8% Notes.
Section 3.02. The provisions of Sections 4.8, 4.10, 4.11, 4.12 and 4.15 of
the Indenture shall be applicable to the 8% Notes only for so long as and during
any time that such 8% Notes are not rated Investment Grade.
ARTICLE 4
Section 4.01. The following definitions are hereby added to the Indenture
solely with respect to the 8% Notes:
"8 Notes" means, collectively, the Series D Notes and, when and if issued
as provided in the Registration Rights Agreement, the Exchange 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 Cedel that apply to such transfer or exchange at the
relevant time.
"Cedel" means Cedel Bank, S.A., or its successors.
"Certificated Note" means a certificated 8% Note registered in the name of
the Holder thereof and issued in accordance with Section 5.01 of this Fourth
Supplemental Indenture, in the form of Exhibit
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A to this Fourth Supplemental Indenture except that such 8% Note shall not
include the information called for by footnotes 2, 5 and 8 thereof.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, or its successor, as operator of the Euroclear system.
"Exchange Notes" means the Series E Notes, which will be issued in exchange
for Series D 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 an 8% Note that includes the information referred to in
footnotes 2, 5 and 8 to the form of 8% Note, attached to this Fourth
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 Fourth Supplemental Indenture, which is required to be placed on all Global
Notes issued under the Indenture.
"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 Donaldson, Lufkin & Jenrette Securities
Corporation, BT Alex. Brown Incorporated, Barclays Capital Inc., Bear, Steams &
Co. Inc., Credit Lyonnais Securities (USA) Inc., Deutsche Bank Securities Inc.,
NationsBanc Montgomery Securities LLC, Salomon Smith Barney Inc., Scotia Capital
Markets (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 D Notes for use by such
Holders in connection with the Exchange Offer.
"Offering Memorandum" means the Offering Memorandum of the Company and the
Subsidiary Guarantors dated February 18, 1999 with respect to the 83/8% Notes.
"Participant" means, with respect to the Depository, Euroclear or Cedel, a
Person who has an account with the Depository, Euroclear or Cedel, respectively
(and, with respect to The Depository Trust Company, shall include Euroclear and
Cedel).
"Private Placement Legend" means the legend set forth in Section 5.01(g)(i)
of this Fourth Supplemental Indenture to be placed on all Series D Notes issued
under the Indenture except where otherwise permitted by the provisions of the
Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of February 25, 1999, 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.
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"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 8%% Note, attached to this Fourth 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 8% Note, attached to
this Fourth 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.
"Rule 144A" means Rule 144A promulgated under the Securities Act, as it may
be amended from time to time, and any successor provision thereto.
"Shelf Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement.
"Transfer Restricted Notes" means Series D Notes that include the
information called for by footnotes 6 and 7 to the form of 8% Note, attached to
this Fourth Supplemental Indenture as Exhibit A, issued under the Indenture.
"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 8% Note, attached to this Fourth 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 Fourth 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.
ARTICLE 5
Section 5.01. For purposes of the 8 % 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 8 % Notes if there
shall have occurred and be continuing a Default or Event of Default with respect
to the 8% Notes. Upon the occurrence of any of the preceding events in (i), (ii)
or (iii) above, upon surrender by such holders of their interest in 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
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may not be exchanged for another 8% 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 Fourth 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 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 Fourth 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 8% Notes, the Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 5.01(h) of this Fourth 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 Fourth Supplemental Indenture,
including the certifications in item (1) thereof.
(iv) Transfer and Exchange of Beneficial Interests in a
Restricted Global Note for Beneficial Interests in the Unrestricted Global Note.
A beneficial interest in any Restricted
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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 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 Fourth 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
Registration 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; or
(D) such transfer occurs on or after February 25,2001 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 Fourth 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 Fourth 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.
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. 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 requirements of Section 5.01(a)
above, upon receipt by the Registrar of the following documentation:
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(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 Fourth 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 Fourth Supplemental Indenture, including
the certifications in item (1) thereof,
(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 Fourth 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 Fourth Supplemental 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 Fourth Supplemental Indenture, including the certifications in
item (2)(b) thereof, or
(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 Fourth Supplemental
Indenture, including the certifications in item (2)(c) 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 Fourth 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 D Notes are so registered. Any Restricted Certificated
Note issued in exchange for a beneficial interest in a Restricted Global Note
pursuant to this Section 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 Fourth
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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
Registration 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; or
(D) such transfer occurs on or after February 25,2001 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 Fourth
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 Fourth 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.
(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 Trustee shall cause the
aggregate principal amount of the applicable Unrestricted Global conditions set
forth in Section 5.01(b)(ii) of this Fourth Supplemental Indenture, the Note to
be reduced accordingly pursuant to Section 5.01(h) of this Fourth 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 8%% 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 to Beneficial Interests in
Restricted Global Notes. If any Holder of a Restricted Certificated Note
proposes to exchange such Series D Note for a beneficial interest in a
Restricted Global Note or to transfer such Restricted Certificated Notes to a
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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:
(A) if the Holder of such Restricted Certificated Note
proposes to exchange such Series D Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the form of Exhibit C
to this Fourth Supplemental Indenture, including the certifications in item
(2)(b) thereof, or
(B) if such Restricted 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 Fourth Supplemental
Indenture, including the certifications in item (1) thereof,
the Trustee shall cancel the Restricted Certificated Note, increase or cause to
be increased the aggregate principal amount of, in the case of clause (A) above,
the appropriate Restricted Global Note, and in the case of clause (B) above, the
Restricted Global Note.
(ii) Restricted Certificated Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of a Restricted Certificated Note may
exchange such 8% Note for a beneficial interest in an Unrestricted Global Note
or transfer 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 Fourth 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
Registration 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; or
(D) such transfer occurs on or after February 25,2001 and
the Registrar receives the following: (1) if the Holder of such Restricted
Certificated Notes proposes to exchange such 8% Notes for a beneficial interest
in the Unrestricted Global Note, a certificate from such Holder in the form of
Exhibit C to this Fourth 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 D 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 Fourth
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.
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 Unrestricted Global Note.
11
(iii) Unrestricted Certificated Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Certificated Note may
exchange such 8% 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 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 Fourth Supplemental Indenture, including the
certifications in item (1) thereof; and
(B) 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 Fourth
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.-
(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 Fourth 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;
12
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with the
Registration Rights Agreement; or
(D) such transfer occurs on or after February 25,2001 and
the Registrar receives the following: (1) if the Holder of such Restricted
Certificated Notes proposes to exchange such 8% Notes for an Unrestricted
Certificated Note, a certificate from such Holder in the form of Exhibit C to
this Fourth Supplemental Indenture, including the certifications in item (1)(d)
thereof, or (2) if the Holder of such Restricted Certificated Notes proposes to
transfer such 8% 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 Fourth 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.
(iii) Unrestricted Certificated Notes to Unrestricted
Certificated Notes. A Holder of Unrestricted Certificated Notes may transfer
such 8% Notes to a 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 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 E Notes, the
Trustee shall cause the aggregate principal amount of the applicable Restricted
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 D 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
13
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 D
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 8% 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 WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT IT IS NOT (A) AN AFFILIATE (AS DEFINED IN RULE 144
UNDER THE SECURITIES ACT) OF THE COMPANY OR THE SUBSIDIARY GUARANTORS, (B) IT IS
EITHER (i) A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) (A "QIB") OR (ii) IS ACQUIRING THIS NOTE OTHER THAN IN
CONNECTION WITH THE OFFER AND SALE OF THE NOTES BY THE INITIAL PURCHASERS (AS
DEFINED IN THE INDENTURE) ON THE TERMS SET FORTH IN THE OFFERING MEMORANDUM (AS
DEFINED IN THE INDENTURE)AND IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH IN
PARAGRAPH TWO BELOW AND (C) IT IS PURCHASING THIS NOTE FOR ITS OWN ACCOUNT OR AN
ACCOUNT OVER WHICH IT EXERCISES SOLE INVESTMENT DISCRETION, AND IT AND ANY SUCH
ACCOUNT IS A "QUALIFIED PERSON" (AS DEFINED IN SECTION 49(a)(1)(D)(iv) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")), FOR THIS PURPOSE, A
PERSON WOULD BE CONSIDERED A "QUALIFIED PERSON" IF IT IS A BANK, SAVINGS & LOAN
ASSOCIATION, INSURANCE COMPANY, PENSION TRUST, FUND (INCLUDING PARTNERSHIPS,
TRUSTS, MUTUAL FUNDS, HEDGE FUNDS, SEPARATE ACCOUNTS AND PORTFOLIO MANAGERS) OR
ANOTHER ENTITY THAT REGULARLY LENDS MONEY OR PURCHASES DEBT SECURITIES FROM
ISSUERS IN PRIMARY OFFERINGS. A PERSON, HOWEVER, WOULD NOT BE A QUALIFIED
PERSON IF IT (A) DIRECTLY OR INDIRECTLY OWNS MORE THAN 10% OF THE OPERATING
PARTNERSHIP OR (B) HAS A DIRECT OR INDIRECT MORE-THAN-10% OWNER
14
WHO ALSO DIRECTLY OR INDIRECTLY OWNS MORE THAN 1O% OF THE OPERATING PARTNERSHIP;
(2) 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
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 THE
OPERATING PARTNERSHIP THAT SUCH TRANSFER IS EXEMPT UNDER THE SECURITIES ACT, (E)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER),
OR (F) 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; PROVIDED THAT, FOR ANY TRANSACTION
PURSUANT TO CLAUSE (B), (C), (D), OR (E) WITHIN TWO YEARS OF THE ISSUANCE OF
THIS NOTE, THE TRANSFEREE REPRESENTS THAT IT IS A "QUALIFIED PERSON" (AS DEFINED
ABOVE); AND
(3) 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 8%
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 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 FOURTH SUPPLEMENTAL
INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 5.01 (a) OF THE FOURTH 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
15
SUCCESSOR 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 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 8% 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 8% Note selected for redemption in whole or in part,
except the unredeemed portion of any 8% 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 8% Note, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any 8% Note is registered as the absolute owner of such 8%
Note for the purpose of receiving payment of principal of and interest on such
8% Notes and for all other purposes, and none of the Trustee, any Agent or the
Company shall be affected by notice to the contrary.
(vi) The Trustee shall authenticate Global Notes and
Certificated Notes in accordance with the provisions of Section 2.3 of the
Indenture.
16
(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 in the form of Exhibits A, B, C and D
attached to this Fourth 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 6.01. 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 6.02. 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 Fourth Supplemental Indenture. This Fourth
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 Fourth Supplemental Indenture.
Section 6.03. 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 6.04. THIS FOURTH 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 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 FIGHT OF THE TRUSTEE OR ANY SECURITY HOLDER 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.
17
Section 6.05. The parties may sign any number of copies of this Fourth
Supplemental Indenture. Each signed copy shall be an original, but all of such
executed copies together shall represent the same agreement.
Section 6.06. All capitalized terms used in this Fourth Supplemental
Indenture which are not otherwise defined herein, shall have the respective
meanings specified in the Indenture, unless the context otherwise requires.
Section 6.07. The 8 % 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").
18
IN WITNESS WHEREOF, the parties to this Fourth Supplemental Indenture have
caused this Fourth Supplemental Indenture to be duly executed, all as of the
date first written above.
COMPANY
-------
HOST MARRIOTT, L.P.
By:__________________________________
Name:
Title:
SUBSIDIARY GUARANTORS
---------------------
HME RIVERS, L.P.
By:__________________________________
Name:
Title:
HMH MARINA LLC
By:__________________________________
Name:
Title:
HMC SBM TWO LLC
By:__________________________________
Name:
Title:
HMC PLP LLC
By:__________________________________
Name:
Title:
19
HMC RETIREMENT PROPERTIES, L.P.
By:__________________________________
Name:
Title:
HMH PENTAGON LLC
By:__________________________________
Name:
Title:
HMH SFO LLC
By:__________________________________
Name:
Title:
AIRPORT HOTELS LLC
By:__________________________________
Name:
Title:
CHESAPEAKE FINANCIAL SERVICES LLC
By:__________________________________
Name:
Title:
HMC CAPITAL RESOURCES LLC
By:__________________________________
Name:
Title:
YBG ASSOCIATES LLC
20
By:__________________________________
Name:
Title:
PRM LLC
By:__________________________________
Name:
Title:
HOST PARK RIDGE LLC
By:__________________________________
Name:
Title:
HOST OF BOSTON, LTD.
By:__________________________________
Name:
Title:
HOST OF HOUSTON, LTD.
By:__________________________________
Name:
Title:
HOST OF HOUSTON 1979
By:__________________________________
Name:
Title:
21
PHILADELPHIA AIRPORT HOTEL LLC
By:__________________________________
Name:
Title:
HMC RETIREMENT PROPERTIES, LLC
By:__________________________________
Name:
Title:
HMC HARTFORD LLC
By:__________________________________
Name:
Title:
HMH NORFOLK LLC
By:__________________________________
Name:
Title:
HMH NORFOLK, L.P.
By:__________________________________
Name:
Title:
HMC PARK RIDGE LLC
By:__________________________________
Name:
Title:
22
HMC PARK RIDGE II LLC
By:__________________________________
Name:
Title:
HMC PARK RIDGE LP
By:__________________________________
Name:
Title:
HMC PARTNERSHIP HOLDINGS LLC
By:__________________________________
Name:
Title:
HMC SUITES LLC
By:__________________________________
Name:
Title:
MARRIOTT SUITES LIMITED PARTNERSHIP
By:__________________________________
Name:
Title:
WELLSFORD-PARK RIDGE MARRIOTT
HOTEL LIMITED PARTNERSHIP
By:__________________________________
Name:
Title:
23
CITY CENTER INTERSTATE PARTNERSHIP LLC
By:___________________________________________
Name:
Title:
FARRELL'S INC. CREAM PARLOR RESTAURANTS LLC
By:___________________________________________
Name:
Title:
HMC BURLINGAME LLC
By:___________________________________________
Name:
Title:
HMC CALIFORNIA LEASING LLC
By:___________________________________________
Name:
Title:
HMC CAPITAL LLC
By:___________________________________________
Name:
Title:
HMC GRAND LLC
By:___________________________________________
Name:
Title:
24
HMC HOTEL DEVELOPMENT LLC
By:___________________________________________
Name:
Title:
HMC MEXPARK LLC
By:___________________________________________
Name:
Title:
HMC POLANCO LLC
By:___________________________________________
Name:
Title:
HMC NGL LLC
By:___________________________________________
Name:
Title:
HMC OLS I L.P.
By:___________________________________________
Name:
Title:
HMC RTZ LOAN I LLC
By:___________________________________________
Name:
Title:
25
HMC RTZ II LLC
By:___________________________________________
Name:
Title:
HMC SEATTLE LLC
By:___________________________________________
Name:
Title:
HMC SWISS HOLDINGS LLC
By:___________________________________________
Name:
Title:
HMC WATERFORD LLC
By:___________________________________________
Name:
Title:
HMH RESTAURANTS LLC
By:___________________________________________
Name:
Title:
HMH RIVERS LLC
By:___________________________________________
Name:
Title:
26
HMH WTC LLC
By:___________________________________________
Name:
Title:
HMP CAPITAL VENTURES LLC
By:___________________________________________
Name:
Title:
HMP FINANCIAL SERVICES LLC
By:___________________________________________
Name:
Title:
HOST LA JOLLA LLC
By:___________________________________________
Name:
Title:
CITY CENTER HOTEL LIMITED PARTNERSHIP
By:___________________________________________
Name:
Title:
MFR OF ILLINOIS LLC
By:___________________________________________
Name:
Title:
27
MFR OF VERMONT LLC
By:___________________________________________
Name:
Title:
MFR OF WISCONSIN LLC
By:___________________________________________
Name:
Title:
HMC MARQUIS LLC
By:___________________________________________
Name:
Title:
PM FINANCIAL LLC
By:___________________________________________
Name:
Title:
PM FINANCIAL LP
By:___________________________________________
Name:
Title:
HMC CHICAGO LLC
By:___________________________________________
Name:
Title:
HMC HPP LLC
28
By:___________________________________________
Name:
Title:
HMC DESERT LLC
By:___________________________________________
Name:
Title:
HMC HANOVER LLC
By:___________________________________________
Name:
Title:
HMC DIVERSIFIED LLC
By:___________________________________________
Name:
Title:
HMC PROPERTIES I LLC
By:___________________________________________
Name:
Title:
HMC POTOMAC LLC
By:___________________________________________
Name:
Title:
29
HMC EAST SIDE II LLC
By:___________________________________________
Name:
Title:
HMC MANHATTAN BEACH LLC
By:___________________________________________
Name:
Title:
CHESAPEAKE HOTEL LIMITED PARTNERSHIP
By:___________________________________________
Name:
Title:
HMH GENERAL PARTNER HOLDINGS LLC
By:___________________________________________
Name:
Title:
HMC IHP HOLDING LLC
By:___________________________________________
Name:
Title:
HMC OP BN LLC
By:___________________________________________
Name:
Title:
30
S.D. HOTELS LLC
By:_______________________________________________
Name:
Title:
HMC GATEWAY LLC
By:_______________________________________________
Name:
Title:
HMC PACIFIC GATEWAY LLC
By:_______________________________________________
Name:
Title:
HMC DESERT SPRINGS LLC
By:_______________________________________________
Name:
Title:
MDSM FINANCE LLC
By:_______________________________________________
Name:
Title:
MARKET STREET MARRIOTT LLC
By:_______________________________________________
Name:
Title:
31
HMC MARKET STREET LLC
By:_______________________________________________
Name:
Title:
NEW MARKET STREET LP
By:_______________________________________________
Name:
Title:
TIMES SQUARE LLC
By:_______________________________________________
Name:
Title:
TIMES SQUARE GP LLC
By:_______________________________________________
Name:
Title:
SAGA PROPERTY LEASING LLC
By:_______________________________________________
Name:
Title:
SAGA RESTAURANTS LLC
By:_______________________________________________
Name:
Title:
32
HMC ATLANTA LLC
By:_______________________________________________
Name:
Title:
IVY STREET LLC
By:_______________________________________________
Name:
Title:
HMC PROPERTIES II LLC
By:_______________________________________________
Name:
Title:
SANTA CLARA HMC LLC
By:_______________________________________________
Name:
Title:
MARINE MIDLAND BANK,
as Trustee
By:_______________________________________________
Name:
Title:
33
EXHIBIT A
FORM OF 8% [SERIES D] [SERIES E]/1/ SENIOR NOTE
Unless and until it is exchanged in whole or in part for 8% 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.
8% [SERIES D] [SERIES E]/3/ SENIOR NOTE DUE 2006
CUSIP No.
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 February 15, 2006. This
Security is one of the 8%% [Series D] [Series E] Senior Notes due 2006 referred
to in such Indenture (hereinafter referred to for purposes of this 8% Senior
Note collectively as the "8% Securities").
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 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
______________________________
/1/ Series D should be replaced with Series E in the Exchange Notes
/2/ To be used only if the Security is issued as a Global Note.
/3/ Series D should be replaced with Series E in the Exchange Notes.
A-1
By:_____________________________
Name:
Title:
Attest:____________________________
Name:
Title:
A-2
FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the 8 3/8% Securities of the Series designated therein
referred to in the within-mentioned Indenture.
MARINE MIDLAND BANK,
as Trustee
By:_______________________________________
Authorized Signatory
HOST MARRIOTT, L.P.
83/8% [SERIES D] [SERIES E]/4/ SENIOR NOTE DUE 2006
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 (1) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 5.01 OF THE FOURTH SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL
NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 5.01 (a) OF
THE FOURTH 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 WITHIN THE UNITED STATES OR TO,
OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH BELOW. BY
ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE HOLDER:
(1) REPRESENTS THAT (A) IT IS NOT AN AFFILIATE (AS DEFINED IN RULE 144
UNDER THE SECURITIES ACT) OF THE COMPANY OR THE SUBSIDIARY GUARANTORS, (B)
EITHER (i) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) (A "QIB") OR (ii) IS ACQUIRING THIS NOTE OTHER THAN IN
CONNECTION WITH THE OFFER AND SALE OF THE NOTES BY THE INITIAL PURCHASERS (AS
DEFINED IN THE INDENTURE) ON THE TERMS SET FORTH IN THE OFFERING MEMORANDUM (AS
DEFINED IN THE INDENTURE)AND IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH IN
PARAGRAPH TWO BELOW AND (C) IT IS PURCHASING THIS NOTE FOR ITS OWN ACCOUNT OR AN
ACCOUNT OVER WHICH IT EXERCISES SOLE INVESTMENT DISCRETION, AND IT AND ANY SUCH
ACCOUNT IS A "QUALIFIED PERSON" (AS DEFINED IN SECTION 49(a)(1)(D)(iv) OF THE
INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")), FOR THIS PURPOSE, A
PERSON WOULD BE CONSIDERED A "QUALIFIED PERSON" IF IT IS A BANK, SAVINGS & LOAN
ASSOCIATION, INSURANCE COMPANY, PENSION TRUST, FUND (INCLUDING PARTNERSHIPS,
TRUSTS, MUTUAL FUNDS, HEDGE FUNDS, SEPARATE ACCOUNTS AND PORTFOLIO MANAGERS) OR
ANOTHER ENTITY THAT REGULARLY LENDS MONEY OR PURCHASES DEBT SECURITIES FROM
ISSUERS IN PRIMARY OFFERINGS. A PERSON, HOWEVER, WOULD NOT BE A QUALIFIED
PERSON IF IT (A) DIRECTLY OR INDIRECTLY OWNS MORE THAN 10% OF THE OPERATING
PARTNERSHIP OR (B) HAS A DIRECT OR INDIRECT MORE-THAN-10% OWNER WHO ALSO
DIRECTLY OR INDIRECTLY OWNS MORE THAN 10% OF THE OPERATING PARTNERSHIP;
_______________________________
/4/ Series D should be replaced with Series E in the Exchange Notes.
/5/ To be included only on Global Notes deposited with DTC as Depository.
A-4
(2) 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
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 THE
OPERATING PARTNERSHIP THAT SUCH TRANSFER IS EXEMPT UNDER THE SECURITIES ACT, (E)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER),
OR (F) 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; PROVIDED THAT, FOR ANY TRANSACTION
PURSUANT TO CLAUSE (B), (C), (D), OR (E) WITHIN TWO YEARS OF THE ISSUANCE OF
THIS NOTE, THE TRANSFEREE REPRESENTS THAT IT IS A "QUALIFIED PERSON" (AS DEFINED
ABOVE); AND
(3) 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 8 3/8% per annum from February 25, 1999 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 8 3/8% per annum
compounded semi-annually.
The Company will pay interest semi-annually on March 15 and September 15 of
each year (each, an "Interest Payment Date"), commencing September 1 5, 1 999.
Interest on the 8 3/8% Securities will accrue from the most recent date to which
interest has been paid or, if no interest has been paid on the 8 3/8%
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 8 3/8% 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 8 3/8% Securities to a Paying Agent to collect principal
payments. Principal of, premium, if any, and interest on the 83/8% Securities
will be payable in United States Dollars at the office or agency of the Company
maintained for such purpose, in
____________________________
/6/ To be included only on Transfer Restricted Notes.
A-5
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 8 3/8%
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 8 3/8% 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, Marine Midland Bank 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 8 3/8% 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 8
3/8% Securities are limited in aggregate principal amount to $300,000,000. The
terms of the 8 3/8% 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 8 3/8% Securities are subject to
all such terms, and Holders of 8 3/8% Securities are referred to the Indenture
and said Act for a statement of them. The 83/8% 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 and certain future Indebtedness of the
Company ranking pari passu with the 8 3/8% 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 8 3/8% Securities may not be redeemed by the Company at its option
prior to the final maturity thereof. The 8 3/8% Securities will not have the
benefit of a sinking fund.
6. Denominations; Transfer; Exchange.
---------------------------------
The 8 3/8% 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 8 3/8% 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 83/8% 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.
A-6
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
83/8% 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 8 3/8% Securities, the Company will be discharged from certain
provisions of the Indenture and the 8 3/8% Securities (including the restrictive
covenants described in paragraph II below, but excluding its obligation to pay
the principal of, premium, if any, and interest on the 8 3/8% 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 8 3/8% 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 8 3/8% 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 8 3/8% 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
662/3% of the aggregate principal amount of the 8 3/8% 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 8 3/8% 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 8 3/8% 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
A-7
circumstances. 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 8 3/8% 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 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 8 3/8% 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 8 3/8% 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 83/8% Securities at I
00% 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 8 3/8% 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
Securities and the Indenture, the predecessor will be released from those
obligations.
A-8
15. Defaults and Remedies.
---------------------
If an Event of Default with respect to the 8 3/8% 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 8 3/8% Securities then outstanding may declare
all 8 3/8% Securities to be due and payable immediately in the manner and with
the effect provided in the Indenture. Holders of 8 3/8% Securities may not
enforce the Indenture or the 8 3/8% Securities, except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the 8 3/8% Securities. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding 8
3/8% Securities may direct the Trustee in its exercise of any trust or power
with respect to such 8 3/8% Securities. The Trustee may withhold from Holders
of 83/8% 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 8 3/8% 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 8 3/8% Securities or because of the creation of any Indebtedness represented
thereby, shall be had against any incorporation, 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 8 3/8% Securities pursuant to the Indenture. Each Holder, by accepting
the 8 3/8% 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.
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/NVA (= 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 8 3/8% Securities as a convenience to the Holders of the 8 3/8%
Securities. No representation is made as to the
A-9
accuracy of such numbers as printed on the 8 3/8% 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 8 3/8% Securities under
the Indenture, Holders of Transfer Restricted Notes shall have all the rights
set forth in the To be included only on Transfer Restricted Notes. Registration
Rights Agreement dated as of the date of the Fourth Supplemental indenture,
among the Company, the Subsidiary Guarantors and the Initial Purchasers.
22. Governing Law.
-------------
THE INDENTURE AND THE 83/8% 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-10
[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____________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-11
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-12
SCHEDULE OF EXCHANGES OF CERTIFICATED NOTES/8/
The following exchanges of a part of this Global Security for Certificated
Securities have been made:
Amount of decrease in Amount of increase in Principal Amount of this Signature of authorized
Principal Amount Principal Amount of Global Note following such officer of Trustee or Note
Date of Exchange of this Global Note this Global Note decrease (or increase) Custodian
___________________________
/8/ This should be included only if the Security is issued in global form.
A-13
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Host Marriott, L.P.
10400 Femwood Road
Bethesda, Maryland 20817
Attention: [ ]
Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005-1180
Attention: Corporate Trust Department
Re: 8 3/8% Series D Senior Notes due 2006
Dear Sirs:
Reference is hereby made to the Amended and Restated Indenture, dated as of
August 5, 1998 (the "Base Indenture"), with HMH Properties, Inc., its Parents
and the Subsidiary Guarantors named therein (collectively, the "Subsidiary
Guarantors") and Marine Midland Bank, as trustee (the "Trustee"), and the Fourth
Supplemental Indenture to the Base Indenture, dated as of February 25, 1999 (the
"Fourth 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 the 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 with 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 Certificated Note pursuant to any provision of the
Securities Act other than Rule 144A. The Transfer is
B-1
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 Fourth
Supplemental Indenture and (2) if such Transfer is in respect of a
principal amount of Series D 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.
(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
B-2
requirements of the Securities Act other than Rule 144 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.
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:
B-3
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 the Restricted Global Note (CUSIP
44108EAJ7), or
(b) [ ] a Restricted Certificated Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) [ ] a beneficial interest in the:
(i) [ ] Restricted Global Note (CUSIP 44108EAJ7), 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-4
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Host Marriott, L.P.
10400 Femwood Road
Bethesda, Maryland 20817
Attention: [ ]
Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005-1180
ATTENtion: Corporate Trust Department
Re: 8 3/8% Series D Senior Notes due 2006
Dear Sirs:
Reference is hereby made to the Amended and Restated Indenture, dated as of
August 5, 1998 (the "Base Indenture"), among HNM Properties, Inc., its Parents
and the Subsidiary Guarantors named therein (collectively, the "Subsidiary
Guarantors") and Marine Midland Bank, as trustee (the "Trustee"), and the Fourth
Supplemental Indenture to the Base Indenture, dated as of February 25, 1999 (the
"Fourth 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
193 3, 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 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
C-1
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 Restricted 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.
(b) [_] Check if exchange is from Restricted 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.
C-2
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:____________________________
C-3
EXHIBIT D
FORM OF CERTIFICATE FROM ACQUIRING
INSTITUTIONAL ACCREDITED INVESTOR
Host Marriott, L.P.
10400 Fernwood Road
Bethesda, Maryland 20817
Attention: [
Marine Midland Bank
140 Broadway, 12th Floor
New York, New York 10005-1180
Attention: Corporate Trust Department
Re: 8 3/8% Series D Senior Notes due 2006
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 Marine Midland Bank, as trustee (the "Trustee"), and the Fourth
Supplemental Indenture to the Base Indenture, dated as of February 25, 1999 (the
"Fourth 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 $ 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 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) in
accordance with another
D-1
exemption from the registration requirements of the Securities Act, (and based
upon an opinion of counsel acceptable to the Company), or (f) 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 and we are and any such account is a "qualified person" as
defined in Section 49(a)(1)(D)(iv) of the Internal Revenue Code of 1986, as
amended. For this purpose we are relying on the Company's representation that a
person would be considered a "Qualified person" if it is a bank, savings & loan
association, insurance company, pension trust, fund (including partnerships,
trusts, mutual funds, hedge funds, separate accounts and portfolio managers) or
another entity that regularly lends money or purchases debt securities from
issuers in primary offerings. We understand, however, that a person would not
be a Qualified Person if it (a) directly or indirectly owns more than 10% of the
operating partnership or (b) has a direct or indirect more-than 10% owner who
also directly or indirectly owns more than 10% of the operating partnership.
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