-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, J8G0JlJ1/l96caTrLgcHmU4+e5ANFjI7C6Z52IqCH3ZB7NUyqO8iLZj4zSf/BwQ3 HZCdKg1ipGj6TGTzowcieA== 0000908737-01-000098.txt : 20010402 0000908737-01-000098.hdr.sgml : 20010402 ACCESSION NUMBER: 0000908737-01-000098 CONFORMED SUBMISSION TYPE: 10-K405 PUBLIC DOCUMENT COUNT: 11 CONFORMED PERIOD OF REPORT: 20001231 FILED AS OF DATE: 20010330 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HOSPITALITY PROPERTIES TRUST CENTRAL INDEX KEY: 0000945394 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 043262075 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-K405 SEC ACT: SEC FILE NUMBER: 001-11527 FILM NUMBER: 1586547 BUSINESS ADDRESS: STREET 1: 400 CENTRE ST CITY: NEWTON STATE: MA ZIP: 02158 BUSINESS PHONE: 6179648389 MAIL ADDRESS: STREET 1: 400 CENTRE STREET CITY: NEWTON STATE: MA ZIP: 02158 10-K405 1 0001.txt UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 10-K [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the Fiscal Year Ended December 31, 2000 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE EXCHANGE ACT OF 1934 Commission File Number 1-11527 HOSPITALITY PROPERTIES TRUST Maryland 04-3262075 (State of incorporation) (IRS Employer Identification No.) 400 Centre Street, Newton, Massachusetts 02458 617-964-8389 Securities registered pursuant to Section 12(b) of the Act: Name of each exchange Class on which registered - --------------------------------------------------- -------------------------- Common Shares of Beneficial Interest New York Stock Exchange Series A Cumulative Redeemable Preferred New York Stock Exchange Shares of Beneficial Interest Securities registered pursuant to Section 12(g) of the Act: None Indicate by check mark whether the registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ] Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K. [X] The aggregate market value of the voting shares of the registrant held by non-affiliates was $1,375 million based on the $26.38 closing price per share on the New York Stock Exchange on March 21, 2001. For purposes of this calculation, 4,000,000 Common Shares of Beneficial Interest, $0.01 par value ("Common Shares") held by HRPT Properties Trust, and an aggregate of 388,979 Common Shares held by the Trustees and officers of the registrant, have been included in the number of shares held by affiliates. Number of the registrant's Common Shares, outstanding as of March 21, 2001: 56,506,340 DOCUMENTS INCORPORATED BY REFERENCE Part III of this Annual Report on Form 10-K is to be incorporated herein by reference from the definitive Proxy Statement of Hospitality Properties Trust (the "Company") for its annual meeting of shareholders currently scheduled to be held on May 15, 2001. --------------- CERTAIN IMPORTANT FACTORS Our Annual Report on Form 10-K contains statements which constitute forward looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Those statements appear in a number of places in this Form 10-K and include statements regarding our intent, belief or expectation, or the intent, belief or expectation of our Trustees or our officers with respect to the declaration or payment of distributions, our policies and plans regarding investment, financing, or other matters, our qualification and continued qualification as a real estate investment trust, trends affecting us or our tenants' financial condition or results of operations or factors which affect our hotels' quality, operations, financial results or competitiveness. Readers are cautioned that any such forward looking statements are not guarantees of future performance and involve risks and uncertainties, and that actual results may differ materially from those contained in the forward looking statements as a result of various factors. Such factors include without limitation changes in financing terms, our ability or inability to complete acquisitions and financing transactions, results of operations of our hotels or our tenants and general changes in industry or general economic conditions not presently contemplated. The accompanying information contained in this Form 10-K, including the information under the headings "Business and Properties" and "Management's Discussion and Analysis of Financial Condition and Results of Operations," identifies other important factors that could cause such differences. THE AMENDED AND RESTATED DECLARATION OF TRUST OF THE COMPANY, DATED AUGUST 21, 1995, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION OF TRUST"), IS DULY FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HOSPITALITY PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE TRUST. ALL PERSONS DEALING WITH THE TRUST, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. HOSPITALITY PROPERTIES TRUST 2000 FORM 10-K ANNUAL REPORT
Table of Contents Part I Page Items 1. & 2. Business and Properties........................................................ 1 Item 3. Legal Proceedings.............................................................. 21 Item 4. Submission of Matters to a Vote of Security Holders............................ 21 Part II Item 5. Market for the Registrant's Common Equity and Related Shareholder Matters...... 22 Item 6. Selected Financial Data........................................................ 23 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations.................................................................. 24 Item 7A. Quantitative and Qualitative Disclosures About Market Risk..................... 29 Item 8. Financial Statements and Supplementary Data.................................... 30 Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure..................................................................... 30 Part III To be incorporated by reference from our definitive Proxy Statement for the annual meeting of shareholders currently scheduled to be held on May 15, 2001, which is expected to be filed not later than 120 days after the end of the Company's fiscal year. Part IV Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K................ 31
Items 1. and 2. Business and Properties The Company. Hospitality Properties Trust is a real estate investment trust ("REIT") formed in 1995 to buy, own and lease hotels to unaffiliated hotel operators. At December 31, 2000, we owned or had commitments to purchase 224 hotels with 30,390 rooms or suites located in 36 states in the U.S., which cost approximately $2.4 billion. We are organized as a Maryland real estate investment trust; our principal place of business is 400 Centre Street, Newton, Massachusetts 02458, and our telephone number is (617) 964-8389. Our principal growth strategy is to expand our investments in hotels and to set minimum rents which produce income in excess of our operating and capital costs. We seek to provide capital to unaffiliated hotel operators who wish to divest their properties while remaining in the hotel business and in doing so, ensure stability of cash flow through dependable and diversified revenue sources. We believe that our operating philosophy affords us opportunities to find high quality hotel investments on attractive terms. In addition, our internal growth strategy is to participate through percentage rents in increases in total hotel sales (including gross revenues from room rentals, food and beverage sales and other services) at our hotels. Our hotels are leased to and managed by single purpose subsidiaries of unaffiliated public companies. Each of our tenants are herein referred to as "Lessees" and each of our operators are herein referred to as "Managers." The annual rent payable to us for our 222 hotels totals $244 million in minimum rent plus percentage rent ranging from 5% to 10% of the excess of total hotel sales over a base year level. In addition to rent payments, 5-6% of total hotel sales is required to be paid and escrowed periodically by the Lessee or the Manager as a reserve for renovations and refurbishment of the hotels. Under the leases and management agreements, our hotels are currently operated as Marriott Hotels, Resorts and Suites(R), Courtyard by Marriott(R), Residence Inn by Marriott(R), Wyndham Garden(R), Wyndham(R), Summerfield Suites by Wyndham(R), AmeriSuites(R), Candlewood Suites(R), Homestead Studio Suites(R), TownePlace Suites by Marriott(R) or SpringHill Suites by Marriott(R). We believe that our portfolio of hotels is among the newest of publicly owned hotel REITs. The average age of our hotels is approximately 6 years at December 31, 2000. Courtyard by Marriott(R) hotels are designed to attract both business and leisure travelers. A typical Courtyard by Marriott(R) hotel has 145 guest rooms. The guest rooms are larger than those in most other moderately priced hotels and predominately offer king size beds. Most Courtyard by Marriott(R) hotels are situated on well landscaped grounds and typically are built with a courtyard containing a patio, pool and socializing area that may be enclosed depending upon location. Most of these hotels have lounges, meeting rooms, an exercise room, a guest laundry and many have a restaurant or coffee shop. Generally, the guest rooms are similar in size and furnishings to guest rooms in full service Marriott(R) hotels. In addition, many of the same amenities as would be available in full service Marriott(R) hotels are available in Courtyard by Marriott(R) hotels, except that restaurants may be open only for breakfast buffets or serve limited menus, room service may not be available and meeting and function rooms are limited in size and number. According to Marriott, as of December 2000, over 500 Courtyard by Marriott(R) hotels were open and operating in the United States and internationally. We believe that the Courtyard by Marriott(R) brand is a leading brand in the upscale, limited service segment of the United States hotel industry. We have invested a total of $721 million in 70 Courtyard by Marriott(R) hotels which have 9,985 rooms including one hotel purchased in February 2001. For 2000, the occupancy, average daily rate ("ADR") and revenue per available room ("REVPAR") for our 63 Courtyard by Marriott(R) hotels which were open for a full year as of January 1, 2000, were as follows: HPT COURTYARD BY MARRIOTT(R) HOTELS Occupancy........................... 79.6% ADR ................................ $98.73 REVPAR.............................. $78.59 1 Residence Inn by Marriott(R) hotels are designed to attract business, governmental and family travelers who stay more than five consecutive nights. Residence Inn by Marriott(R) hotels generally have between 80 and 130 studio, one-bedroom and two-bedroom suites. Most Residence Inn by Marriott(R) hotels are designed as residential style buildings with landscaped walkways, courtyards and recreational areas. Residence Inn by Marriott(R) hotels do not have restaurants. All offer complimentary continental breakfast and a complimentary evening hospitality hour. In addition, each suite contains a fully equipped kitchen and many have fireplaces. Most Residence Inn by Marriott(R) hotels also have swimming pools, exercise rooms, sports courts and guest laundries. According to Marriott, as of December 2000, 354 Residence Inn by Marriott(R) hotels were open and operating in the United States, Mexico and Canada. We believe that the Residence Inn by Marriott(R) brand is the leading brand in the extended stay segment of the United States hotel industry. We have invested a total of $415 million in 37 Residence Inn by Marriott(R) hotels which have 4,695 suites, including one hotel purchased in March 2001. For 2000, the occupancy, ADR and REVPAR for our 31 Residence Inn by Marriott(R) hotels which were open for a full year as of January 1, 2000, were as follows: HPT RESIDENCE INN BY MARRIOTT(R) HOTELS Occupancy........................... 83.3% ADR ................................$103.36 REVPAR.............................. $86.10 Wyndham(R) Hotels Twelve of our hotels are Wyndham(R) hotels, including the Wyndham(R) and Wyndham Garden(R) brands. Wyndham Garden(R) hotels are upscale, mid-sized, full service hotels located primarily near suburban business centers and airports, and are designed to attract business travelers and small business groups. Each of our Wyndham(R) hotels contains between 140 and 381 rooms. Amenities and services include large desks, room service and access to 24-hour telecopy and mail/package service. The 1,500 to 5,000 square feet of meeting facilities at Wyndham Garden(R) hotels generally can accommodate groups of between 10 and 200 people in a flexible meeting room design with audiovisual equipment. Our 381 room Wyndham(R) hotel in Salt Lake City contains nearly 15,000 square feet of meeting space. Most Wyndham(R) hotels also feature a lobby lounge, a swimming pool, exercise facilities, and one or more restaurants. According to Wyndham, as of December 2000 there were 32 Wyndham Garden(R) and 67 Wyndham(R) hotels open and operating in the United States. The 12 Wyndham(R) and Wyndham Garden(R) hotels owned by us represent a total investment of $183 million and contain 2,321 rooms. For 2000, these hotels had occupancy, ADR and REVPAR as follows: HPT WYNDHAM(R) HOTELS Occupancy........................... 72.4% ADR ................................ $91.88 REVPAR.............................. $66.52 Summerfield Suites by Wyndham(R) hotels are upscale, all suite extended stay hotels which offer guests separate living and sleeping areas, full kitchens, large work areas, complimentary breakfasts and evening social hours. Private voice mail, video players, on site convenience stores and "room service" contracted from area restaurants also are generally available. In addition, Summerfield Suites by Wyndham(R) offers "signature" two bedroom, two bathroom suites designed for equal-status business travelers in training classes or attending meetings and for families. According to Wyndham, there were 38 Summerfield Suites by Wyndham(R) open and operating in the United States as of December 2000. We have invested a total of $240 million in 15 Summerfield Suites by Wyndham(R) hotels which contain 1,822 suites (2,766 rooms). For 2000, these hotels had occupancy, ADR and REVPAR as follows: HPT SUMMERFIELD SUITES BY WYNDHAM(R) HOTELS Occupancy........................... 82.3% ADR ................................ $126.86 REVPAR.............................. $104.41 2 AmeriSuites(R) During 2000 our 24 Sumner Suites(R) hotels began operating as AmeriSuites(R) hotels, after their leaseholds were acquired by Prime Hospitality Corp. AmeriSuites(R) hotels are all suite hotels designed to attract value-oriented business travelers. AmeriSuites(R) hotels compete in the all suite segment of the lodging industry with such brands as Embassy Suites(R), SpringHill Suites(R) and Hampton Inn & Suites(R). Each AmeriSuites(R) guest room offers an efficient space for working which includes two phones with data ports and voice mail, a living area which includes a coffee maker, microwave, mini-refrigerator, sleeper-sofa and 25-inch television, and a separate bedroom area with either one king or two double beds. Each AmeriSuites(R) hotel has a lobby lounge where free continental breakfast is provided in the mornings and cocktails are generally available in the evening. In addition, all AmeriSuites(R) hotels have meeting rooms that can accommodate up to 150 persons, fitness facilities and a pool. AmeriSuites(R) hotels are generally high-rise hotels of six or seven stories and are of masonry construction. According to Prime Hospitality, there were 134 AmeriSuites(R) hotels open and operating across the United States as of December 31, 2000. We have invested $243 million in our 24 AmeriSuites(R) hotels which include 2,929 guest suites. The conversion of these hotels to AmeriSuites(R) in 2000 was completed by Prime in November 2000 at no cost to us. Excluding four hotels which were not open for a full year as of January 1, 2000, the occupancy, ADR and REVPAR for these hotels in 2000 were as follows: HPT AMERISUITES(R) HOTELS Occupancy........................... 59.5% ADR ................................ $76.57 REVPAR.............................. $45.56 Candlewood Suites(R) hotels are mid-priced extended stay hotels which offer studio and one bedroom suites designed for business travelers expecting to stay five or more nights. Candlewood Suites(R) hotels compete in the mid-priced extended stay segment of the lodging industry against such other brands as Sierra Suites(R), TownePlace Suites by Marriott(R) and MainStay Suites(R). Each Candlewood Suites(R) suite contains a fully equipped kitchen area, a combination living and work area and a sleeping area. The kitchen includes a full-size microwave, full-size refrigerator, stove, dishwasher and coffee maker. The living area contains a convertible sofa, recliner, 25-inch television, videocassette player and compact disc player. The work area includes a large desk and executive chair, two phone lines, voice mail and a speaker phone. Each Candlewood Suites(R) suite contains a king size bed. Other amenities offered at each Candlewood Suites(R) hotel include a fitness center, free guest laundry facilities, and a Candlewood Cupboard(R) area where guests can purchase light meals, snacks and other refreshments. According to Candlewood, there were 89 Candlewood Suites(R) hotels open and operating across the United States as of December 2000. We have invested $261 million in 34 Candlewood Suites(R) hotels which include 3,892 suites. For 2000, these hotels had occupancy, ADR and REVPAR as follows: HPT CANDLEWOOD SUITES(R) HOTELS Occupancy........................... 78.0% ADR ................................ $56.16 REVPAR.............................. $43.80 Homestead Studio Suites(R) hotels are extended stay hotels designed for value-oriented business travelers. Each Homestead Studio Suites(R) room features a kitchen with a full-size refrigerator, stovetop, microwave, coffee maker, utensils and dishes. A work area is provided with a well-lit desktop and a computer data port. Complimentary local phone calls, fax service, copy service and personalized voice-mail are also available to guests. On-site laundry and other personal care items are available. Housekeeping services are provided on a twice-weekly basis. According to Homestead, there were 136 Homestead Studio Suites(R) hotels open as of December 2000. We have invested $145 million in 18 Homestead Studio Suites(R) hotels with a total of 2,399 rooms. For 2000, these hotels had occupancy, ADR and REVPAR as follows: HPT HOMESTEAD STUDIO SUITES(R) HOTELS Occupancy........................... 79.7% ADR ................................ $50.67 REVPAR.............................. $40.38 3 TownePlace Suites(R) are extended-stay hotels offering studio, one bedroom and two-bedroom suites for business and family travelers. TownePlace Suites(R) compete in the mid-priced extended-stay segment of the lodging industry. Each suite offers a fully equipped kitchen, a bedroom and separate living and work areas. Other amenities offered include voice mail, data lines, on-site business services, guest laundry facilities and a fitness center. According to Marriott, there were 84 TownePlace Suites(R) open as of December 2000. We have invested in 11 TownePlace Suites which include 1,196 rooms for $90 million. For 2000, the occupancy, ADR and REVPAR for our five TownePlace Suites(R) which were open for a full year as of January 1, 2000, were as follows: HPT TOWNEPLACE SUITES(R) HOTELS Occupancy........................... 73.7% ADR ................................ $57.22 REVPAR.............................. $42.17 The Marriott St. Louis Airport hotel is a 601 room hotel located in Missouri on approximately 12 acres of land at the I-70 exit for Lambert International Airport, across the street from the airport entrance. The hotel has two nine floor towers and three low rise buildings which create a courtyard for the hotel's pool and gardens. The property includes 20 meeting rooms totaling approximately 18,000 square feet of space, three restaurants and a concierge floor. Included in the 601 rooms are 77 Rooms That Work(R), which are rooms specifically designed by Marriott for the business traveler. The property has been operated as a Marriott hotel since it opened. The Marriott Nashville Airport hotel is a 399 room, 17 floor hotel located in Tennessee on 17 acres of land in High Ridge Business Park across I-40 from the Nashville Airport and a short drive from downtown Nashville. The property includes 14 meeting rooms totaling approximately 17,000 square feet of space, a restaurant and a concierge floor. Included in the 399 rooms are 85 Rooms That Work(R). The property has been operated as a Marriott hotel since it opened. SpringHill Suites(R) are value focused suites for business and family travelers. SpringHill Suites(R) compete in the mid-priced all-suite segment of the lodging industry. Each suite offers separate sleeping and living and work areas, a mini-refrigerator, a microwave and coffee service. Other amenities offered include a pull-out sofa bed, complimentary breakfast buffet, weekday newspaper, two line phones with data port and voice mail, on-site business services, guest laundry facilities and a fitness center. According to Marriott, there were over 61 SpringHill Suites(R) open as of December 2000. We have invested in one SpringHill Suites(R) which is a 150 room hotel located in Nashville, Tennessee. This hotel opened at the beginning of 2000. 4 PRINCIPAL LEASE FEATURES As of December 31, 2000, all of HPT's hotels are leased to unrelated third-party tenants. Each hotel we own is leased as part of a combination of hotels, as described below. The principal features of the leases for our 224 hotels are as follows: o Minimum rent. All of our leases require minimum annual rent equal to between 10% and 12% of our investment in our hotels. o Percentage rent. All of our leases require percentage rent equal to between 5% and 10% of increases in gross hotel revenues over threshold amounts. o Long term leases. All of the leases for our hotels expire after 2010. The weighted average lease term remaining for our hotels as of December 31, 2000, is 13.4 years. o Pooled leases. Each of our hotels is part of a combination of hotels. The tenant's lease obligations with respect to each hotel in a combination are subject to cross default with the lease obligations with respect to all the other hotels in the same combination. The smallest combination includes 12 hotels with 2,321 rooms in which we have invested $183 million; the largest combination includes 53 hotels with 7,610 rooms in which we have invested $512 million. o Geographic diversification. Each combination of hotels leased to a single tenant is geographically diversified. In addition, many of our hotels are located in the vicinity of major demand generators such as large suburban office parks, airports, medical or educational facilities and major tourist attractions. o All or none renewals. All tenant renewal options for each combination of our hotels may only be exercised on an all or none basis and not for separate hotels. o Security deposits. All of our leases require security deposits, generally equal to one year's minimum rent. o FF&E Reserves. All of our leases require the tenants to deposit 5-6% of gross hotel revenues into escrow to fund periodic renovations (the "FF&E Reserve"). For hotels which were open for at least one year prior to 2000 (200 hotels) the FF&E Reserve contributions in 2000 averaged $1,363 per room. o Subordinated fees. Management fees for our hotels are subordinated to the rent due to us. o Guarantees for new hotels. When we purchase and lease recently built hotels, we require that payment of rent be guaranteed until the operations of the hotels achieve negotiated rent coverage levels. Except for guarantors whose obligations are investment grade rated, or whose net worth is substantially in excess of the guaranteed annual minimum rent, these guarantees are secured by deposits. o Rent coverage. We define rent coverage as combined gross hotel revenues minus all expenses which are not subordinated to rent and the required FF&E Reserve contributions divided by the aggregate rent due to us. During 2000, the 200 HPT hotels which had been open at least one year at the beginning of 2000 had average rent coverage of approximately 1.39 times. All of our hotels, including 22 which opened in 1999 or 2000, had average rent coverage of approximately 1.34 times in 2000. We believe that these are the highest rent coverage ratios among all public hotel REITs. At December 31, 2000, 10 of our hotels were on leased land. In each case, the remaining term of the ground lease (including renewal options) is in excess of 35 years, and the ground lessors are unrelated to the sellers and to us. Ground rent payable under the ground leases is the responsibility of our lessees and is generally calculated as a percentage of hotel revenues. Eight of the 10 ground leases require minimum annual rent ranging from approximately $90,000 to $503,000 per year; two ground leases require rent to be pre-paid. If a ground lease terminates, the lease with respect to the hotel on such ground-leased land will also terminate. If a lessee does not perform obligations under the ground lease or elects not to renew any ground lease, we must perform obligations under the ground lease or renew the ground lease in order to protect our investment in the affected hotel. Any pledge of our interests in a ground lease may also require the consent of the applicable ground lessor and its lenders. We have no current requirement to make any pledge of our ground lease interests. 5 INVESTMENT AND OPERATING POLICIES In order to benefit from potential property appreciation, we prefer to own properties rather than make mortgage investments. We may invest in real estate joint ventures if we conclude that we may benefit from the participation of co-venturers or that the opportunity to participate in the investment is contingent on the use of a joint venture structure. We may invest in participating, convertible or other types of mortgages if we conclude that we may benefit from the cash flow or appreciation in the value of the mortgaged property. Convertible mortgages are similar to equity participation because they permit the lender to either participate in increasing revenues from the property or convert some or all of that mortgage into equity ownership interests. At December 31, 2000, we own no mortgages or joint venture interests. We provide capital to unaffiliated hotel operators who wish to divest their properties while remaining in the hotel business. Many other public hotel REITs seek to control the operations of hotels in which they invest and generally design their affiliated leases to capture substantially all net operating revenues from their hotels as rent. Our leases are designed so that net operating revenues from our hotels exceed rents by considerable coverage margins. We believe that these differences in operating philosophy afford us a competitive advantage over other hotel REITs in finding high quality hotel investment opportunities on attractive terms and increase the dependability of our cash flows used to pay distributions. Our investment objectives include increasing per share distributions and cash available for distribution ("CAD") from dependable and diverse resources. To achieve these objectives, we seek to operate as follows: maintain a strong capital base of shareholders' equity; invest in high quality properties operated by unaffiliated hotel operating companies; use moderate debt leverage to fund additional investments which increase CAD per share because of positive spreads between our cost of investment capital and investment yields; structure investments which generate a minimum base return and provide an opportunity to participate in a percentage of operating growth at our hotels; when market conditions permit, refinance debt with additional equity or long term debt; and pursue diversification so that our CAD is received from diverse properties and operators. Our day-to-day operations are conducted by REIT Management & Research, Inc. ("RMR"), our investment advisor. RMR originates and presents investment opportunities to our Board of Trustees. As a REIT, generally, we may not operate hotels. We or our tenants have entered into arrangements for operation of our hotels. Our leases require the lessee to pay all operating expenses, including taxes, insurance and capital reserves and to pay to us minimum rents plus percentage rents based upon increases in gross revenues at the hotels. As described elsewhere in this Form 10-K, tax law changes effective January 1, 2001, enable us to contract with third parties for the operation of our owned hotels without the need for a third party tenant. We expect that we may enter new or revise existing hotel operating leases to accommodate our hotel operators, but we currently expect to do so only to the extent the new arrangements are reasonably consistent with the investment and operating policies enumerated above. ACQUISITION POLICIES We intend to pursue growth through the acquisition of additional hotels. Generally, we prefer to purchase multiple hotels in one transaction because we believe a single operating agreement, cross default covenants and all or none renewal rights for multiple hotels in diverse locations enhance the credit characteristics and the security of our investments. In implementing our acquisition strategy, we consider a range of factors relating to proposed hotel purchases including: (i) historical and projected cash flows; (ii) the competitive market environment and the current or potential market position of each hotel; (iii) the availability of a qualified lessee/operator; (iv) the design and physical condition of the hotel; (v) the estimated replacement cost and proposed acquisition price of the hotel; (vi) the price segment in which the hotel is operated; (vii) the reputation of the particular hotel management organization, if any, with which the hotel is or may become affiliated; (viii) the age of the hotel; (ix) the level of services and amenities offered at the hotel; and (x) the hotel brand under which the hotel operates or is expected to operate. In determining the competitive position of a hotel, we examine the proximity of the hotel to business, retail, academic and tourist attractions and transportation routes, the number and characteristics of competitive hotels within the hotel's market and the existence of barriers to entry within that market, including site availability, zoning restrictions and financing constraints. While we have historically focused on the acquisition of upscale limited service, extended stay and full service hotel properties, we consider acquisitions in all segments of the hospitality industry. An important part of our acquisition strategy is to identify and select qualified and experienced hotel operators. We intend to continue to select hotels for acquisition which will enhance the diversity of our portfolio in respect to location, brand name, and lessee/operator. 6 DISPOSITION POLICIES We have no current intention to dispose of any hotels, although we may do so. We currently anticipate that disposition decisions, if any, will be based on factors such as the following: (i) potential opportunities to increase revenues and property values by reinvesting sale proceeds; (ii) the proposed sale prices; (iii) the strategic fit of the hotel with the rest of our portfolio; (iv) the existence of alternative sources, uses or needs for capital; and (v) the maintenance of our qualification as a REIT. FINANCING POLICIES We currently intend to employ conservative financing policies in pursuit of our growth strategies. Although there are no limitations in our organizational documents on the amount of indebtedness we may incur, we currently intend to pursue our growth strategies while maintaining a capital structure under which our debt will not exceed 50% of our total capitalization. We may from time to time re-evaluate and modify our financing policies in light of then current economic conditions, relative availability and costs of debt and equity capital, market values of properties, growth and acquisition opportunities and other factors and may increase or decrease our ratio of debt to total capitalization accordingly. Our Board of Trustees may determine to obtain a replacement for our current credit facilities or to seek additional capital through additional equity offerings, debt financings, or retention of cash flows in excess of distributions to shareholders, or a combination of these methods. None of our properties are encumbered by mortgages. To the extent that the Board of Trustees decides to obtain additional debt financing, we may do so on an unsecured basis (or a secured basis, subject to limitations which may be present in existing financing or other arrangements) and may seek to obtain other lines of credit or to issue securities senior to our common and/or preferred shares, including preferred shares of beneficial interest and debt securities, either of which may be convertible into common shares or be accompanied by warrants to purchase common shares, or to engage in transactions which may involve a sale or other conveyance of hotels to subsidiaries or to unaffiliated special purpose entities. We may finance acquisitions through an exchange of properties or through the issuance of additional common shares or other securities. The proceeds from any of our financings may be used to pay distributions, to provide working capital, to refinance existing indebtedness or to finance acquisitions and expansions of existing or new properties. Investment Advisor. We have an agreement with RMR under which RMR provides investment and administrative services to us. RMR is a Delaware corporation owned by Barry M. Portnoy and Gerard M. Martin, who are our Managing Trustees. RMR has a principal place of business at 400 Centre Street, Newton, Massachusetts, 02458; and its telephone number is (617) 928-1300. RMR acts as the investment advisor to HRPT Properties Trust (NYSE:HRP), the holder of 4,000,000 of our common shares and Senior Housing Properties Trust (NYSE: SNH) and has other business interests. The directors of RMR are Gerard M. Martin, Barry M. Portnoy and David J. Hegarty. The executive officers of RMR are David J. Hegarty, President; John G. Murray, Executive Vice President; Jennifer B. Clark, Vice President; David M. Lepore, Vice President; John A. Mannix, Vice President; Thomas M. O'Brien, Vice President; Evrett W. Benton, Vice President; and John C. Popeo, Treasurer. Mr. Murray and Mr. O'Brien are also officers of ours. Employees. We have no employees. Services which would otherwise be provided by employees are provided by RMR pursuant to our advisory agreement and by our Managing Trustees and officers. As of March 21, 2001, RMR had approximately 195 full-time employees. Competition. The hotel industry is highly competitive. Each of our hotels is located in an area that includes other hotels. Increases in the number of hotels in a particular area could have a material adverse effect on the occupancy rates and daily rates at our hotels located in that area. Agreements with the operators of our hotels restrict the right of each operator and its affiliates for a limited period of time to own, build, operate, franchise or manage any other hotel of the same brand within various specified areas around our hotels. Under these agreements neither the operators nor their affiliates are restricted from operating other brands of hotels in the market areas of any of our hotels, and after such limited period of time, the operators and their affiliates may also compete with our hotels by opening, managing or franchising additional hotels under the same brand name in direct competition with our hotels. We expect to compete for hotel acquisition and financing opportunities with entities which may have substantially greater financial resources than us, including, without limitation, other REITs, banks, insurance companies, pension plans and public and private partnerships. These entities may be able to accept more risk than we can prudently manage, including risks with respect to the creditworthiness of hotel operators. Such competition may reduce the number of suitable hotel acquisition or financing opportunities available to us or increase the bargaining power of hotel owners seeking to sell or finance their properties. 7 FEDERAL INCOME TAX CONSIDERATIONS The following summary of federal income tax consequences is based on existing law, and is limited to investors who own our shares as investment assets rather than as inventory or as property used in a trade or business. The summary does not discuss the particular tax consequences that might be relevant to you if you are subject to special rules under the federal income tax law, for example if you are: o a bank, life insurance company, regulated investment company, or other financial institution, o a broker or dealer in securities or foreign currency, o a person who has a functional currency other than the U.S. dollar, o a person who acquires our shares in connection with employment or other performance of services, o a person subject to alternative minimum tax, o a person who owns our shares as part of a straddle, hedging transaction, constructive sale transaction, or conversion transaction, or o except as specifically described in the following summary, a tax-exempt entity or a foreign person. The sections of the Internal Revenue Code that govern the federal income tax qualification and treatment of a REIT and its shareholders are complex. This presentation is a summary of applicable Internal Revenue Code provisions, related rules and regulations and administrative and judicial interpretations, all of which are subject to change, possibly with retroactive effect. Future legislative, judicial, or administrative actions or decisions could affect the accuracy of statements made in this summary. We have not sought a ruling from the IRS with respect to any matter described in this summary, and we cannot assure you that the IRS or a court will agree with the statements made in this summary. In addition, the following summary is not exhaustive of all possible tax consequences, and does not discuss any estate, gift, state, local, or foreign tax consequences. For all these reasons, we urge you and any prospective acquiror of our shares to consult with a tax advisor about the federal income tax and other tax consequences of the acquisition, ownership and disposition of our shares. Your federal income tax consequences may differ depending on whether or not you are a "U.S. shareholder." For purposes of this summary, a "U.S. shareholder" for federal income tax purposes is: o a citizen or resident of the United States, including an alien individual who is a lawful permanent resident of the United States or meets the substantial presence residency test under the federal income tax laws, o a corporation, partnership or other entity treated as a corporation or partnership for federal income tax purposes, that is created or organized in or under the laws of the United States, any state thereof or the District of Columbia, unless otherwise provided by Treasury regulations, o an estate the income of which is subject to federal income taxation regardless of its source, or o a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust, or electing trusts in existence on August 20, 1996 to the extent provided in Treasury regulations, whose status as a U.S. shareholder is not overridden by an applicable tax treaty. Conversely, a "non-U.S. shareholder" is a beneficial owner of our shares who is not a U.S. shareholder. Taxation as a REIT We have elected to be taxed as a REIT under Sections 856 through 860 of the Internal Revenue Code, commencing with our taxable year ending December 31, 1995. Our REIT election, assuming continuing compliance with the qualification tests summarized 8 below, continues in effect for subsequent taxable years. Although no assurance can be given, we believe that we are organized, have operated, and will continue to operate in a manner that qualifies us to be taxed under the Internal Revenue Code as a REIT. As a REIT, we generally will not be subject to federal income tax on our net income distributed as dividends to our shareholders. Distributions to our shareholders generally will be includable in their income as dividends to the extent of our current or accumulated earnings and profits. A portion of these dividends may be treated as capital gain dividends, as explained below. No portion of any dividends will be eligible for the dividends received deduction for corporate shareholders. Distributions in excess of current or accumulated earnings and profits generally will be treated for federal income tax purposes as a return of capital to the extent of a recipient shareholder's basis in our shares, and will reduce this basis. Our current or accumulated earnings and profits will generally be allocated first to distributions made on our preferred shares, and thereafter to distributions made on our common shares. Our counsel, Sullivan & Worcester LLP, has opined that we have been organized and have qualified as a REIT under the Internal Revenue Code for our 1995 through 2000 taxable years, and that our current investments and plan of operation will enable us to meet the requirements for qualification and taxation as a REIT under the Internal Revenue Code. Our actual qualification and taxation as a REIT will depend upon our ability to meet the various qualification tests imposed under the Internal Revenue Code and summarized below. While we believe that we will operate in a manner to satisfy the various REIT qualification tests, our counsel has not reviewed and will not review compliance with these tests on a continuing basis. If we fail to qualify as a REIT in any year, we will be subject to federal income taxation as if we were a domestic corporation, and our shareholders will be taxed like shareholders of ordinary corporations. In this event, we could be subject to significant tax liabilities, and the amount of cash available for distribution to our shareholders may be reduced or eliminated. If we qualify for taxation as a REIT and meet the annual distribution tests described below, we generally will not be subject to federal income taxes on the amount distributed. However, even if we qualify for federal income taxation as a REIT, we may be subject to federal tax in the following circumstances: o We will be taxed at regular corporate rates on any undistributed "real estate investment trust taxable income," including our undistributed net capital gains. o If our alternative minimum taxable income exceeds our taxable income, we may be subject to the corporate alternative minimum tax on our items of tax preference. o If we have net income from the sale or other disposition of "foreclosure property" that is held primarily for sale to customers in the ordinary course of business or other nonqualifying income from foreclosure property, we will be subject to tax on this net income from foreclosure property at the highest regular corporate rate, which is currently 35%. o If we have net income from prohibited transactions, including sales or other dispositions of inventory or property held primarily for sale to customers in the ordinary course of business other than foreclosure property, we will be subject to tax on this income at a 100% rate. o If we fail to satisfy the 75% gross income test or the 95% gross income test discussed below, but nonetheless maintain our qualification as a REIT, we will be subject to tax at a 100% rate on the greater of the amount by which we fail the 75% or the 95% test, multiplied by a fraction intended to reflect our profitability. o If we fail to distribute for any calendar year at least the sum of 85% of our REIT ordinary income for that year, 95% of our REIT capital gain net income for that year, and any undistributed taxable income from prior periods, we will be subject to a 4% excise tax on the excess of the required distribution over the amounts actually distributed. o If we acquire an asset from a corporation in a transaction in which our basis in the asset is determined by reference to the basis of the asset in the hands of a present or former C corporation, and if we subsequently recognize gain on the disposition of this asset during the ten-year period beginning on the date on which the asset ceased to be owned by the C corporation, then we will pay tax at the highest regular corporate tax rate, which is currently 35%, on the lesser of the excess of the fair market value of the asset over the C corporation's basis in the asset on the date the asset ceased to be owned by the C corporation, or the gain recognized in the disposition. o As explained below, effective for our taxable year 2001 and thereafter, we are permitted within limits to own stock and securities of a "taxable REIT subsidiary." A taxable REIT subsidiary of ours will be taxed on its net income as a C corporation that is separate from us, and will be subject to limitations on the deductibility of interest expense paid to us. If it is determined that 9 transactions between and among us, our tenants, and our taxable REIT subsidiaries are not at arm's length we will be subject to a 100% tax on redetermined rents, deductions and excess interest expense. If we invest in properties in foreign countries, our profits from those investments will generally be subject to tax in the countries where those properties are located. The nature and amount of this taxation will depend on the laws of the countries where the properties are located. If we operate as we currently intend, then we will distribute our taxable income to our shareholders and we will generally not pay federal income tax except to the extent of taxes due on "taxable REIT subsidiary" income, if any, and thus we generally cannot recover the cost of foreign taxes imposed on our foreign investments by claiming foreign tax credits against our federal income tax liability. Also, we cannot pass through to our shareholders any foreign tax credits. If we fail to qualify or elect not to qualify as a REIT in any taxable year, then we will be subject to federal tax in the same manner as an ordinary corporation. Any distributions to our shareholders in a year in which we fail to qualify as a REIT will not be deductible by us, nor will these distributions be required under the Internal Revenue Code. In that event, to the extent of our current and accumulated earnings and profits, any distributions to our shareholders will be taxable as ordinary dividend income and, subject to limitations in the Internal Revenue Code, will be eligible for the dividends received deduction for corporate recipients. Also, we will generally be disqualified from federal income taxation as a REIT for the four taxable years following disqualification. Failure to qualify for federal income taxation as a REIT for even one year could result in reduction or elimination of distributions to our shareholders, or in our incurring substantial indebtedness or liquidating substantial investments in order to pay the resulting corporate-level taxes. REIT Qualification Requirements General Requirements. Section 856(a) of the Internal Revenue Code defines a REIT as a corporation, trust or association: (1) that is managed by one or more trustees or directors; (2) the beneficial ownership of which is evidenced by transferable shares or by transferable certificates of beneficial interest; (3) that would be taxable, but for Sections 856 through 859 of the Internal Revenue Code, as an ordinary domestic corporation; (4) that is not a financial institution or an insurance company subject to special provisions of the Internal Revenue Code; (5) the beneficial ownership of which is held by 100 or more persons; (6) that is not "closely held" as defined under the personal holding company stock ownership test, as described below; and (7) that meets other tests regarding income, assets and distributions, all as described below. Section 856(b) of the Internal Revenue Code provides that conditions (1) to (4), inclusive, must be met during the entire taxable year and that condition (5) must be met during at least 335 days of a taxable year of 12 months, or during a pro rata part of a taxable year of less than 12 months. Section 856(h)(2) of the Internal Revenue Code provides that neither condition (5) nor (6) need be met for our first taxable year as a REIT. We believe that we have satisfied conditions (1) to (6), inclusive, during each of the requisite periods ending on or before December 31, 2000, and that we will continue to satisfy those conditions in future taxable years. There can, however, be no assurance in this regard. By reason of condition (6) above, we will fail to qualify as a REIT for a taxable year if at any time during the last half of the year more than 50% in value of our outstanding shares is owned directly or indirectly by five or fewer individuals. To help comply with condition (6), our declaration of trust restricts transfers of our shares. In addition, if we comply with applicable Treasury regulations to ascertain the ownership of our shares and do not know, or by exercising reasonable diligence would not have known, that we failed condition (6), then we will be treated as satisfying condition (6). However, our failure to comply with these regulations for ascertaining ownership may result in a penalty of $25,000, or $50,000 for intentional violations. Accordingly, we intend to comply with these regulations, and to request annually from record holders of significant percentages of our shares information regarding the ownership of our shares. Under our declaration of trust, our shareholders are required to respond to these requests for information. For purposes of condition (6) above, REIT shares held by a pension trust are treated as held directly by the pension trust's beneficiaries in proportion to their actuarial interests in the pension trust. Consequently, five or fewer pension trusts could own more than 10 50% of the interests in an entity without jeopardizing that entity's federal income tax qualification as a REIT. However, as discussed below, if a REIT is a "pension-held REIT," each pension trust owning more than 10% of the REIT's shares by value generally may be taxed on a portion of the dividends received from the REIT. Our Wholly-Owned Subsidiaries and Our Investments through Partnerships. Except in respect of taxable REIT subsidiaries as discussed below, Section 856(i) of the Internal Revenue Code provides that any corporation, 100% of whose stock is held by a REIT, is a qualified REIT subsidiary and shall not be treated as a separate corporation for federal tax purposes. The assets, liabilities and items of income, deduction and credit of a qualified REIT subsidiary are treated as the REIT's. We believe that each of our direct and indirect wholly-owned subsidiaries, other than the taxable REIT subsidiaries discussed below, will either be a qualified REIT subsidiary within the meaning of Section 856(i) of the Internal Revenue Code, or a noncorporate entity that for federal income tax purposes is not treated as separate from its owner under regulations issued under Section 7701 of the Internal Revenue Code. Thus, except for the taxable REIT subsidiaries discussed below, in applying all the federal income tax REIT qualification requirements described in this summary, all assets, liabilities and items of income, deduction and credit of our direct and indirect wholly-owned subsidiaries are treated as ours. We may invest in real estate through one or more limited or general partnerships or limited liability companies that are treated as partnerships for federal income tax purposes. In the case of a REIT that is a partner in a partnership, regulations under the Internal Revenue Code provide that, for purposes of the REIT qualification requirements regarding income and assets discussed below, the REIT is deemed to own its proportionate share of the assets of the partnership corresponding to the REIT's proportionate capital interest in the partnership and is deemed to be entitled to the income of the partnership attributable to this proportionate share. In addition, for these purposes, the character of the assets and gross income of the partnership generally retain the same character in the hands of the REIT. Accordingly, our proportionate share of the assets, liabilities, and items of income of each partnership in which we are a partner is treated as ours for purposes of the income tests and asset tests discussed below. In contrast, for purposes of the distribution requirement discussed below, we must take into account as a partner our share of the partnership's income as determined under the general federal income tax rules governing partners and partnerships under Sections 701 through 777 of the Internal Revenue Code. Taxable REIT Subsidiaries. Effective for taxable year 2001 and thereafter, we are permitted to own any or all of the securities of a "taxable REIT subsidiary" as defined in Section 856(l) of the Internal Revenue Code, provided that no more than 20% of our assets is comprised of our investments in the stock or securities of our taxable REIT subsidiaries. Among other requirements, a taxable REIT subsidiary must: (1) be a non-REIT corporation for federal income tax purposes in which we directly or indirectly own shares, (2) join with us in making a taxable REIT subsidiary election, (3) not directly or indirectly operate or manage a lodging facility or a health care facility, and (4) not directly or indirectly provide to any person, under a franchise, license, or otherwise, rights to any brand name under which any lodging facility or health care facility is operated, except that in limited circumstances a subfranchise, sublicense or similar right can be granted to an independent contractor to operate or manage a lodging facility. In addition, a corporation other than a REIT in which a taxable REIT subsidiary directly or indirectly owns more than 35% of the voting power or value will automatically be treated as a taxable REIT subsidiary. Subject to the discussion below, we believe that we and each of our taxable REIT subsidiaries, if any, have complied with, and will continue to comply with, the requirements for taxable REIT subsidiary status, and we believe that the same will be true for any taxable REIT subsidiary that we later form or acquire. Our ownership of stock and securities in taxable REIT subsidiaries is exempt from the 10% and 5% REIT asset tests discussed below. Also, as discussed below, taxable REIT subsidiaries can perform services for our tenants without disqualifying the rents we receive from those tenants under the 75% gross income test or the 95% gross income test. Moreover, because taxable REIT subsidiaries are taxed as C corporations that are separate from us, their assets, liabilities and items of income, deduction and credit are not imputed to us for purposes of the REIT qualification requirements described in this summary. Therefore, taxable REIT subsidiaries can undertake third-party management and development activities and activities not related to real estate. Finally, a REIT can earn qualifying rental income from the lease of a qualified lodging facility to a taxable REIT subsidiary, so long as the taxable REIT subsidiary hires an eligible independent contractor to operate the facility, all as described in more detail below. Restrictions are imposed on taxable REIT subsidiaries so as to ensure that they will be subject to an appropriate level of federal income taxation. For example, a taxable REIT subsidiary may not deduct interest payments made in any year to an affiliated REIT to the extent that the interest payments exceed, generally, 50% of the taxable REIT subsidiary's adjusted taxable income for that year. However, 11 the taxable REIT subsidiary may carry forward the disallowed interest expense to a succeeding year, and deduct the interest in that later year subject to that year's 50% adjusted taxable income limitation. In addition, if a taxable REIT subsidiary pays interest, rent, or other amounts to its affiliated REIT in an amount that exceeds what an unrelated third party would have paid in an arm's length transaction, then the REIT generally will be subject to an excise tax equal to 100% of the excessive portion of the payment. Finally, if in comparison to an arm's length transaction, a tenant has overpaid rent to the REIT in exchange for underpaying the taxable REIT subsidiary for services rendered, then the REIT may be subject to an excise tax equal to 100% of the overpayment. There can be no assurance that arrangements involving our taxable REIT subsidiaries will not result in the imposition of one or more of these deduction limitations or excise taxes, but we do not believe that we are or will be subject to these impositions. Income Tests. There are two gross income requirements for qualification as a REIT under the Internal Revenue Code: o At least 75% of our gross income, excluding gross income from sales or other dispositions of property held primarily for sale, must be derived from investments relating to real property, including "rents from real property" as defined under Section 856 of the Internal Revenue Code, mortgages on real property, or shares in other REITs. When we receive new capital in exchange for our shares or in a public offering of five-year or longer debt instruments, income attributable to the temporary investment of this new capital in stock or a debt instrument, if received or accrued within one year of our receipt of the new capital, is generally also qualifying income under the 75% test. o At least 95% of our gross income, excluding gross income from sales or other dispositions of property held primarily for sale, must be derived from a combination of items of real property income that satisfy the 75% test described above, dividends, interest, payments under interest rate swap or cap agreements, options, futures contracts, forward rate agreements, or similar financial instruments, and gains from the sale or disposition of stock, securities, or real property. For purposes of these two requirements, income derived from a "shared appreciation provision" in a mortgage loan is generally treated as gain recognized on the sale of the property to which it relates. Although we will use our best efforts to ensure that the income generated by our investments will be of a type which satisfies both the 75% and 95% gross income tests, there can be no assurance in this regard. In order to qualify as "rents from real property" under Section 856 of the Internal Revenue Code, several requirements must be met: o The amount of rent received generally must not be based on the income or profits of any person, but may be based on receipts or sales. o Rents do not qualify if the REIT owns 10% or more by vote or value of the tenant, whether directly or after application of attribution rules. While we intend not to lease property to any party if rents from that property would not qualify as rents from real property, application of the 10% ownership rule is dependent upon complex attribution rules and circumstances that may be beyond our control. For example, an unaffiliated third party's ownership directly or by attribution of 10% or more by value of our shares, as well as 10% or more by vote or value of the stock of one of our tenants, would result in that tenant's rents not qualifying as rents from real property. Our declaration of trust disallows transfers or purported acquisitions, directly or by attribution, of our shares that could result in disqualification as a REIT under the Internal Revenue Code and permits our trustees to repurchase the shares to the extent necessary to maintain our status as a REIT under the Internal Revenue Code. Nevertheless, there can be no assurance that these provisions in our declaration of trust will be effective to prevent REIT status under the Internal Revenue Code from being jeopardized under the 10% affiliated tenant rule. Furthermore, there can be no assurance that we will be able to monitor and enforce these restrictions, nor will our shareholders necessarily be aware of ownership of shares attributed to them under the Internal Revenue Code's attribution rules. o For our 2001 taxable year and thereafter, there is a limited exception to the above prohibition on earning "rents from real property" from a 10% affiliated tenant, if the tenant is a taxable REIT subsidiary. If at least 90% of the leased space of a property is leased to tenants other than taxable REIT subsidiaries and 10% affiliated tenants, and if the taxable REIT subsidiary's rent for space at that property is substantially comparable to the rents paid by nonaffiliated tenants for comparable space at the property, then otherwise qualifying rents paid by the taxable REIT subsidiary to the REIT will not be disqualified on account of the rule prohibiting 10% affiliated tenants. o For our 2001 taxable year and thereafter, there is a second exception to the above prohibition on earning "rents from real property" from a 10% affiliated tenant. For this second exception to apply, a real property interest in a "qualified lodging facility" must be leased by the REIT to its taxable REIT subsidiary, and the facility must be operated on behalf of the taxable REIT subsidiary by a person who is an "eligible independent contractor." Qualified lodging facilities are defined as hotels, 12 motels, or other establishments where more than half of the dwelling units are used on a transient basis, provided that legally authorized wagering or gambling activities are not conducted at or in connection with such facilities. Also included in the definition are the qualified lodging facility's customary amenities and facilities. An eligible independent contractor with respect to a qualified lodging facility is defined as an independent contractor if, at the time the contractor enters into the agreement with the taxable REIT subsidiary to operate the qualified lodging facility, that contractor or any person related to that contractor is actively engaged in the trade or business of operating qualified lodging facilities for persons unrelated to the taxable REIT subsidiary or its affiliated REIT. For these purposes, an otherwise qualifying independent contractor is not disqualified from that status on account of the taxable REIT subsidiary bearing the expenses for the operation of the qualified lodging facility, the taxable REIT subsidiary receiving the revenues from the operation of the qualified lodging facility, net of expenses for that operation and fees payable to the independent contractor, or the REIT receiving income from the independent contractor pursuant to a preexisting or otherwise grandfathered lease of another property. Also, as explained above, we will be subject to a 100% excise tax if the IRS successfully asserts that the rents paid by our taxable REIT subsidiary to us exceed an arm's length rental rate. We have not yet leased hotels to a taxable REIT subsidiary, but we may do so in the future and expect at that time to take steps reasonably practicable to ensure compliance with the applicable requirements. Also, although there can be no assurance in this regard, we expect that any future rental arrangements between us and our taxable REIT subsidiaries will not be subject to the 100% excise tax. o In order for rents to qualify, we generally must not manage the property or furnish or render services to the tenants of the property, except through an independent contractor from whom we derive no income or, for our 2001 taxable year and thereafter, through one of our taxable REIT subsidiaries. There is an exception to this rule permitting a REIT to perform customary tenant services of the sort which a tax-exempt organization could perform without being considered in receipt of "unrelated business taxable income" as defined in Section 512(b)(3) of the Internal Revenue Code. In addition, a de minimis amount of noncustomary services will not disqualify income as "rents from real property" so long as the value of the impermissible services does not exceed 1% of the gross income from the property. o If rent attributable to personal property leased in connection with a lease of real property is 15% or less of the total rent received under the lease, then the rent attributable to personal property will qualify as rents from real property; if this 15% threshold is exceeded, the rent attributable to personal property will not so qualify. For our taxable years through December 31, 2000, the portion of rental income treated as attributable to personal property is determined according to the ratio of the tax basis of the personal property to the total tax basis of the real and personal property which is rented. For our 2001 taxable year and thereafter, the ratio will be determined by reference to fair market values rather than tax bases. We believe that all or substantially all our rents have qualified and will qualify as rents from real property for purposes of Section 856 of the Internal Revenue Code. In order to qualify as mortgage interest on real property for purposes of the 75% test, interest must derive from a mortgage loan secured by real property with a fair market value, at the time the loan is made, at least equal to the amount of the loan. If the amount of the loan exceeds the fair market value of the real property, the interest will be treated as interest on a mortgage loan in a ratio equal to the ratio of the fair market value of the real property to the total amount of the mortgage loan. Any gain we realize on the sale of property held as inventory or other property held primarily for sale to customers in the ordinary course of business will be treated as income from a prohibited transaction that is subject to a penalty tax at a 100% rate. This prohibited transaction income also may adversely affect our ability to satisfy the 75% and 95% gross income tests for federal income tax qualification as a REIT. We cannot provide assurances as to whether or not the IRS might successfully assert that one or more of our dispositions is subject to the 100% penalty tax. However, we believe that dispositions of assets that we might make will not be subject to the 100% penalty tax, because we intend to: o own our assets for investment with a view to long-term income production and capital appreciation; o engage in the business of developing, owning and operating our existing properties and acquiring, developing, owning and operating new properties; and o make occasional dispositions of our assets consistent with our long-term investment objectives. If we fail to satisfy one or both of the 75% or 95% gross income tests for any taxable year, we may nevertheless qualify as a REIT for that year under certain relief provisions. Even if these relief provisions did apply, a special tax equal to 100% is imposed upon the greater of the amount by which we failed the 75% test or the 95% test, multiplied by a fraction intended to reflect our profitability. 13 Asset Tests. At the close of each quarter of each taxable year, we must also satisfy these asset percentage tests in order to qualify as a REIT for federal income tax purposes: o At least 75% of our total assets must consist of real estate assets, cash and cash items, shares in other REITs, government securities, and stock or debt instruments purchased with proceeds of a stock offering or an offering of our debt with a term of at least five years, but only for the one-year period commencing with our receipt of the offering proceeds. o Not more than 25% of our total assets may be represented by securities other than those securities that count favorably toward the preceding 75% asset test. o Of the investments included in the preceding 25% asset class, the value of any one issuer's securities that we own may not exceed 5% of the value of our total assets, and we may not own more than 10% of any one non-REIT issuer's outstanding voting securities. For our 2001 taxable year and thereafter, we may not own more than 10% of the vote or value of any one non-REIT issuer's outstanding securities, unless that issuer is our taxable REIT subsidiary or the securities are straight debt securities. o For our 2001 taxable year and thereafter, our stock and securities in a taxable REIT subsidiary are exempted from the preceding 10% and 5% asset tests. However, no more than 20% of our total assets may be represented by stock or securities of taxable REIT subsidiaries. When a failure to satisfy the above asset tests results from an acquisition of securities or other property during a quarter, the failure can be cured by disposition of sufficient nonqualifying assets within 30 days after the close of that quarter. We intend to maintain records of the value of our assets to document our compliance with the above asset tests, and to take actions as may be required to cure any failure to satisfy the tests within 30 days after the close of any quarter. Annual Distribution Requirements. In order to qualify for taxation as a REIT under the Internal Revenue Code, we are required to make annual distributions other than capital gain dividends to our shareholders in an amount at least equal to the excess of: (A) the sum of 90% of our "real estate investment trust taxable income," as defined in Section 857 of the Internal Revenue Code, computed by excluding any net capital gain and before taking into account any dividends paid deduction for which we are eligible, and 90% of our net income after tax, if any, from property received in foreclosure, over (B) the sum of our qualifying noncash income, e.g., imputed rental income or income from transactions inadvertently failing to qualify as like-kind exchanges. Prior to our 2001 taxable year, the preceding 90% percentages were 95%. The distributions must be paid in the taxable year to which they relate, or in the following taxable year if declared before we timely file our tax return for the earlier taxable year and if paid on or before the first regular distribution payment after that declaration. If a dividend is declared in October, November, or December to shareholders of record during one of those months, and if the dividend is paid during the following January, then for federal income tax purposes the dividend will be treated as having been both paid and received on December 31 of the prior taxable year. A distribution which is not pro rata within a class of our beneficial interests entitled to a distribution, or which is not consistent with the rights to distributions among our classes of beneficial interests, is a preferential distribution that is not taken into consideration for purposes of the distribution requirements, and accordingly the payment of a preferential distribution could affect our ability to meet the distribution requirements. Taking into account our distribution policies, including the dividend reinvestment plan we have adopted, we expect that we will not make any preferential distributions. The distribution requirements may be waived by the IRS if a REIT establishes that it failed to meet them by reason of distributions previously made to meet the requirements of the 4% excise tax discussed below. To the extent that we do not distribute all of our net capital gain and all of our real estate investment trust taxable income, as adjusted, we will be subject to tax on undistributed amounts. In addition, we will be subject to a 4% excise tax to the extent we fail within a calendar year to make required distributions to our shareholders of 85% of our ordinary income and 95% of our capital gain net income plus the excess, if any, of the "grossed up required distribution" for the preceding calendar year over the amount treated as distributed for that preceding calendar year. For this purpose, the term "grossed up required distribution" for any calendar year is the sum of our taxable income for the calendar year without regard to the deduction for dividends paid and all amounts from earlier years that are not treated as having been distributed under the provision. If we do not have enough cash or other liquid assets to meet the 95% or 90% distribution requirements, we may find it necessary to arrange for new debt or equity financing or sell properties to provide funds for required distributions, or else our REIT status for federal 14 income tax purposes could be jeopardized. We can provide no assurance that financing would be available for these purposes on favorable terms. If we fail to distribute sufficient dividends for any year, we may be able to rectify this failure by paying "deficiency dividends" to shareholders in a later year. These deficiency dividends may be included in our deduction for dividends paid for the earlier year, but an interest charge would be imposed upon us for the delay in distribution. Although we may be able to avoid being taxed on amounts distributed as deficiency dividends, we will remain liable for the 4% excise tax discussed above. Depreciation and Federal Income Tax Treatment of Leases Our initial tax bases in our assets will generally be our acquisition cost. We will generally depreciate our real property on a straight-line basis over 40 years and our personal property over 9 years. These depreciation schedules may vary for properties that we acquire through tax-free or carryover basis acquisitions. We will be entitled to depreciation deductions from our facilities only if we are treated for federal income tax purposes as the owner of the facilities. This means that the leases of the facilities must be classified for federal income tax purposes as true leases, rather than as sales or financing arrangements, and we believe this to be the case. In the case of sale-leaseback arrangements, the IRS could assert that we realized prepaid rental income in the year of purchase to the extent that the value of a leased property, at the time of purchase, exceeded the purchase price for that property. While we believe that the value of leased property at the time of purchase did not exceed purchase prices, because of the lack of clear precedent we cannot provide assurances as to whether the IRS might successfully assert the existence of prepaid rental income in any of our sale-leaseback transactions. Additionally, Section 467 of the Internal Revenue Code, which concerns leases with increasing rents, may apply to those of our leases which provide for rents that increase from one period to the next. Section 467 of the Internal Revenue Code provides that in the case of a so-called "disqualified leaseback agreement" rental income must be accrued at a constant rate. Where constant rent accrual is required, we could recognize rental income from a lease in excess of cash rents and, as a result, encounter difficulty in meeting the annual distribution requirement. Disqualified leaseback agreements include leaseback transactions where a principal purpose for providing increasing rent under the agreement is the avoidance of federal income tax. Treasury regulations provide that rents will not be treated as increasing for tax avoidance purposes where the increases are based upon a fixed percentage of lessee receipts. Therefore, the additional rent provisions in our leases that are based on a fixed percentage of lessee receipts generally should not cause the leases to be disqualified leaseback agreements under Section 467. Taxation of U.S. Shareholders As long as we qualify as a REIT for federal income tax purposes, a distribution to our U.S. shareholders that we do not designate as a capital gain dividend will be treated as an ordinary income dividend to the extent that it is made out of current or accumulated earnings and profits. Distributions made out of our current or accumulated earnings and profits that we properly designate as capital gain dividends will be taxed as long-term capital gains, as discussed below, to the extent they do not exceed our actual net capital gain for the taxable year. However, corporate shareholders may be required to treat up to 20% of any capital gain dividend as ordinary income under Section 291 of the Internal Revenue Code. In addition, we may elect to retain net capital gain income and treat it as constructively distributed. In that case: (1) we will be taxed at regular corporate capital gains tax rates on retained amounts, (2) each U.S. shareholder will be taxed on its designated proportionate share of our retained net capital gains as though that amount were distributed and designated a capital gain dividend, (3) each U.S. shareholder will receive a credit for its designated proportionate share of the tax that we pay, (4) each U.S. shareholder will increase its adjusted basis in our shares by the excess of the amount of its proportionate share of these retained net capital gains over its proportionate share of this tax that we pay, and (5) both we and our corporate shareholders will make commensurate adjustments in our respective earnings and profits for federal income tax purposes. 15 If we elect to retain our net capital gains in this fashion, we will notify our U.S. shareholders of the relevant tax information within 60 days after the close of the affected taxable year. For noncorporate U.S. shareholders, long-term capital gains are generally taxed at maximum rates of 20% or 25%, depending upon the type of property disposed of and the previously claimed depreciation with respect to this property. If for any taxable year we designate as capital gain dividends any portion of the dividends paid or made available for the year to our U.S. shareholders, including our retained capital gains treated as capital gain dividends, then the portion of the capital gain dividends so designated that will be allocated to the holders of a particular class of shares will on a percentage basis equal the ratio of the amount of the total dividends paid or made available for the year to the holders of that class of shares to the total dividends paid or made available for the year to holders of all classes of our shares. We will similarly designate the portion of any capital gain dividend that is to be taxed to noncorporate U.S. shareholders at the maximum rates of 20% or 25% so that the designations will be proportional among all classes of our shares. Distributions in excess of current or accumulated earnings and profits will not be taxable to a U.S. shareholder to the extent that they do not exceed the shareholder's adjusted basis in the shareholder's shares, but will reduce the shareholder's basis in those shares. To the extent that these excess distributions exceed the adjusted basis of a U.S. shareholder's shares, they will be included in income as capital gain, with long-term gain generally taxed to noncorporate U.S. shareholders at a maximum rate of 20%. No U.S. shareholder may include on his federal income tax return any of our net operating losses or any of our capital losses. Dividends that we declare in October, November or December of a taxable year to U.S. shareholders of record on a date in those months will be deemed to have been received by shareholders on December 31 of that taxable year, provided we actually pay these dividends during the following January. Also, items that are treated differently for regular and alternative minimum tax purposes are to be allocated between a REIT and its shareholders under Treasury regulations which are to be prescribed. It is possible that these Treasury regulations will require tax preference items to be allocated to our shareholders with respect to any accelerated depreciation or other tax preference items that we claim. A U.S. shareholder's sale or exchange of our shares will result in recognition of gain or loss in an amount equal to the difference between the amount realized and the shareholder's adjusted basis in the shares sold or exchanged. This gain or loss will be capital gain or loss, and will be long-term capital gain or loss if the shareholder's holding period in the shares exceeds one year. In addition, any loss upon a sale or exchange of our shares held for six months or less will generally be treated as a long-term capital loss to the extent of our long-term capital gain dividends during the holding period. Noncorporate U.S. shareholders who borrow funds to finance their acquisition of our shares could be limited in the amount of deductions allowed for the interest paid on the indebtedness incurred. Under Section 163(d) of the Internal Revenue Code, interest paid or accrued on indebtedness incurred or continued to purchase or carry property held for investment is generally deductible only to the extent of the investor's net investment income. A U.S. shareholder's net investment income will include ordinary income dividend distributions received from us and, if an appropriate election is made by the shareholder, capital gain dividend distributions received from us; however, distributions treated as a nontaxable return of the shareholder's basis will not enter into the computation of net investment income. Taxation of Tax-Exempt Shareholders In Revenue Ruling 66-106, the IRS ruled that amounts distributed by a REIT to a tax-exempt employees' pension trust did not constitute "unrelated business taxable income," even though the REIT may have financed some its activities with acquisition indebtedness. Although revenue rulings are interpretive in nature and subject to revocation or modification by the IRS, based upon the analysis and conclusion of Revenue Ruling 66-106, our distributions made to shareholders that are tax-exempt pension plans, individual retirement accounts, or other qualifying tax-exempt entities should not constitute unrelated business taxable income, unless the shareholder has financed its acquisition of our shares with "acquisition indebtedness" within the meaning of the Internal Revenue Code. Special rules apply to tax-exempt pension trusts, including so-called 401(k) plans but excluding individual retirement accounts or government pension plans, that own more than 10% by value of a "pension-held REIT" at any time during a taxable year. The pension trust may be required to treat a percentage of all dividends received from the pension-held REIT during the year as unrelated business taxable income. This percentage is equal to the ratio of: (1) the pension-held REIT's gross income derived from the conduct of unrelated trades or businesses, determined as if the pension-held REIT were a tax-exempt pension fund, less direct expenses related to that income, to (2) the pension-held REIT's gross income from all sources, less direct expenses related to that income, 16 except that this percentage shall be deemed to be zero unless it would otherwise equal or exceed 5%. A REIT is a pension-held REIT if: o the REIT is "predominantly held" by tax-exempt pension trusts, and o the REIT would otherwise fail to satisfy the "closely held" ownership requirement discussed above if the stock or beneficial interests in the REIT held by tax-exempt pension trusts were viewed as held by tax-exempt pension trusts rather than by their respective beneficiaries. A REIT is predominantly held by tax-exempt pension trusts if at least one tax-exempt pension trust owns more than 25% by value of the REIT's stock or beneficial interests, or if one or more tax-exempt pension trusts, each owning more than 10% by value of the REIT's stock or beneficial interests, own in the aggregate more than 50% by value of the REIT's stock or beneficial interests. Because of the restrictions in our declaration of trust regarding the ownership concentration of our shares, we believe that we are not and will not be a pension-held REIT. However, because our shares are publicly traded, we cannot completely control whether or not we are or will become a pension-held REIT. Taxation of Non-U.S. Shareholders The rules governing the United States federal income taxation of non-U.S. shareholders are complex, and the following discussion is intended only as a summary of these rules. If you are a non-U.S. shareholder, we urge you to consult with your own tax advisor to determine the impact of United States federal, state, local, and foreign tax laws, including any tax return filing and other reporting requirements, with respect to your investment in our shares. In general, a non-U.S. shareholder will be subject to regular United States federal income tax in the same manner as a U.S. shareholder with respect to its investment in our shares if that investment is effectively connected with the non-U.S. shareholder's conduct of a trade or business in the United States. In addition, a corporate non-U.S. shareholder that receives income that is or is deemed effectively connected with a trade or business in the United States may also be subject to the 30% branch profits tax under Section 884 of the Internal Revenue Code, which is payable in addition to regular United States federal corporate income tax. The balance of this discussion of the United States federal income taxation of non-U.S. shareholders addresses only those non-U.S. shareholders whose investment in our shares is not effectively connected with the conduct of a trade or business in the United States. A distribution by us to a non-U.S. shareholder that is not attributable to gain from the sale or exchange of a United States real property interest and that is not designated as a capital gain dividend will be treated as an ordinary income dividend to the extent that it is made out of current or accumulated earnings and profits. A distribution of this type will generally be subject to United States federal income tax and withholding at the rate of 30%, or the lower rate that may be specified by a tax treaty if the non-U.S. shareholder has in the manner prescribed by the IRS demonstrated its entitlement to benefits under a tax treaty. Because we cannot determine our current and accumulated earnings and profits until the end of the taxable year, withholding at the rate of 30% or applicable lower treaty rate will generally be imposed on the gross amount of any distribution to a non-U.S. shareholder that we make and do not designate a capital gain dividend. Notwithstanding this withholding on distributions in excess of our current and accumulated earnings and profits, these distributions are a nontaxable return of capital to the extent that they do not exceed the non-U.S. shareholder's adjusted basis in our shares, and the nontaxable return of capital will reduce the adjusted basis in these shares. To the extent that distributions in excess of current and accumulated earnings and profits exceed the non-U.S. shareholder's adjusted basis in our shares, the distributions will give rise to tax liability if the non-U.S. shareholder would otherwise be subject to tax on any gain from the sale or exchange of these shares, as discussed below. A non-U.S. shareholder may seek a refund from the IRS of amounts withheld on distributions to him in excess of our current and accumulated earnings and profits. For any year in which we qualify as a REIT, distributions that are attributable to gain from the sale or exchange of a United States real property interest are taxed to a non-U.S. shareholder as if these distributions were gains effectively connected with a trade or business in the United States conducted by the non-U.S. shareholder. Accordingly, a non-U.S. shareholder will be taxed on these amounts at the normal capital gain rates applicable to a U.S. shareholder, subject to any applicable alternative minimum tax and to a special alternative minimum tax in the case of nonresident alien individuals; the non-U.S. shareholder will be required to file a United States federal income tax return reporting these amounts, even if applicable withholding is imposed as described below; and corporate non-U.S. shareholders may owe the 30% branch profits tax under Section 884 of the Internal Revenue Code in respect of these amounts. We will be required to withhold from distributions to non-U.S. shareholders, and remit to the IRS, 35% of the maximum amount of any distribution that could be designated as a capital gain dividend. In addition, for purposes of this withholding rule, if we designate prior distributions as capital gain dividends, then subsequent distributions up to the amount of the designated prior distributions will be treated as capital gain dividends. The amount of any tax withheld is creditable against the non-U.S. shareholder's United States federal income 17 tax liability, and any amount of tax withheld in excess of that tax liability may be refunded provided that an appropriate claim for refund is filed with the IRS. If for any taxable year we designate as capital gain dividends any portion of the dividends paid or made available for the year to our shareholders, including our retained capital gains treated as capital gain dividends, then the portion of the capital gain dividends so designated that will be allocated to the holders of a particular class of shares will on a percentage basis equal the ratio of the amount of the total dividends paid or made available for the year to the holders of that class of shares to the total dividends paid or made available for the year to holders of all classes of our shares. Tax treaties may reduce the withholding obligations on our distributions. Under some treaties, however, rates below 30% generally applicable to ordinary income dividends from United States corporations may not apply to ordinary income dividends from a REIT. If the amount of tax withheld by us with respect to a distribution to a non-U.S. shareholder exceeds the shareholder's United States federal income tax liability with respect to the distribution, the non-U.S. shareholder may file for a refund of the excess from the IRS. In this regard, note that the 35% withholding tax rate on capital gain dividends corresponds to the maximum income tax rate applicable to corporate non-U.S. shareholders but is higher than the 20% and 25% maximum rates on capital gains generally applicable to noncorporate non-U.S. shareholders. Generally effective with respect to distributions paid after December 31, 2000, new Treasury regulations alter the information reporting and backup withholding rules applicable to non-U.S. shareholders and provide presumptions under which a non-U.S. shareholder is subject to backup withholding and information reporting until we or the applicable withholding agent receives certification from the shareholder of its non-U.S. shareholder status. In some instances, these certification requirements are more burdensome than those applicable under prior Treasury regulations. These new Treasury regulations also provide special rules to determine whether, for purposes of determining the applicability of a tax treaty, our distributions to a non-U.S. shareholder that is an entity should be treated as paid to the entity or to those owning an interest in that entity, and whether the entity or its owners are entitled to benefits under the tax treaty. These new Treasury regulations encourage non-U.S. shareholders and withholding agents to use the new IRS Forms W-8 series, rather than the predecessor IRS Forms W-8, 1001, and 4224, and require use of the IRS Forms W-8 series for payments made after December 31, 2000. If our shares are not "United States real property interests" within the meaning of Section 897 of the Internal Revenue Code, a non-U.S. shareholder's gain on sale of these shares generally will not be subject to United States federal income taxation, except that a nonresident alien individual who was present in the United States for 183 days or more during the taxable year will be subject to a 30% tax on this gain. Our shares will not constitute a United States real property interest if we are a "domestically controlled REIT." A domestically controlled REIT is a REIT in which at all times during the preceding five-year period less than 50% in value of its shares is held directly or indirectly by foreign persons. We believe that we are and will be a domestically controlled REIT and thus a non-U.S. shareholder's gain on sale of our shares will not be subject to United States federal income taxation. However, because our shares are publicly traded, we can provide no assurance that we will be a domestically controlled REIT. If we are not a domestically controlled REIT, a non-U.S. shareholder's gain on sale of our shares will not be subject to United States federal income taxation as a sale of a United States real property interest, if that class of shares is "regularly traded," as defined by applicable Treasury regulations, on an established securities market like the New York Stock Exchange, and the non-U.S. shareholder has at all times during the preceding five years owned 5% or less by value of that class of shares. If the gain on the sale of our shares were subject to United States federal income taxation, the non-U.S. shareholder will generally be subject to the same treatment as a U.S. shareholder with respect to its gain, will be required to file a United States federal income tax return reporting that gain, and in the case of corporate non-U.S. shareholders might owe branch profits tax under Section 884 of the Internal Revenue Code. A purchaser of our shares from a non-U.S. shareholder will not be required to withhold on the purchase price if the purchased shares are regularly traded on an established securities market or if we are a domestically controlled REIT. Otherwise, a purchaser of our shares from a non-U.S. shareholder may be required to withhold 10% of the purchase price paid to the non-U.S. shareholder and to remit the withheld amount to the IRS. Backup Withholding and Information Reporting Information reporting and backup withholding may apply to distributions or proceeds paid to our shareholders under the circumstances discussed below. Amounts withheld under backup withholding are generally not an additional tax and may be refunded or credited against the REIT shareholder's federal income tax liability. A U.S. shareholder will be subject to backup withholding at a 31% rate when it receives distributions on our shares or proceeds upon the sale, exchange, redemption, retirement or other disposition of our shares, unless the U.S. shareholder properly executes under penalties of perjury an IRS Form W-9 or substantially similar form that: o provides the U.S. shareholder's correct taxpayer identification number; and 18 o certifies that the U.S. shareholder is exempt from backup withholding because it is a corporation or comes within another exempt category, it has not been notified by the IRS that it is subject to backup withholding, or it has been notified by the IRS that it is no longer subject to backup withholding. If the U.S. shareholder does not provide its correct taxpayer identification number on the IRS Form W-9 or substantially similar form, it may be subject to penalties imposed by the IRS and the REIT or other withholding agent may have to withhold a portion of any capital gain distributions paid to it. Unless the U.S. shareholder has established on a properly executed IRS Form W-9 or substantially similar form that it is a corporation or comes within another exempt category, distributions on our shares paid to it during the calendar year, and the amount of tax withheld, if any, will be reported to it and to the IRS. Distributions on our shares to a non-U.S. shareholder during each calendar year and the amount of tax withheld, if any, will generally be reported to the non-U.S. shareholder and to the IRS. This information reporting requirement applies regardless of whether the non-U.S. shareholder is subject to withholding on distributions on our shares or whether the withholding was reduced or eliminated by an applicable tax treaty. Also, distributions paid to a non-U.S. shareholder on our shares may be subject to backup withholding at a 31% rate, unless the non-U.S. shareholder properly certifies its non-U.S. shareholder status on an IRS Form W-8 or substantially similar form in the manner described above. Similarly, information reporting and 31% backup withholding will not apply to proceeds a non-U.S. shareholder receives upon the sale, exchange, redemption, retirement or other disposition of our shares, if the non-U.S. shareholder properly certifies its non-U.S. shareholder status on an IRS Form W-8 or substantially similar form. Even without having executed an IRS Form W-8 or substantially similar form, however, in some cases information reporting and 31% backup withholding will not apply to proceeds that a non-U.S. shareholder receives upon the sale, exchange, redemption, retirement or other disposition of our shares if the non-U.S. shareholder receives those proceeds through a broker's foreign office. As described above, new Treasury regulations alter the information reporting and backup withholding rules applicable to non-U.S. shareholders for payments made after December 31, 2000, and in general these new Treasury Regulations replace IRS Forms W-8, 1001, and 4224 with the new IRS Forms W-8 series. Other Tax Consequences You should recognize that our and our shareholders' federal income tax treatment may be modified by legislative, judicial, or administrative actions at any time, which actions may be retroactive in effect. The rules dealing with federal income taxation are constantly under review by the Congress, the IRS and the Treasury Department, and statutory changes, new regulations, revisions to existing regulations, and revised interpretations of established concepts are issued frequently. No prediction can be made as to the likelihood of passage of new tax legislation or other provisions either directly or indirectly affecting us and our shareholders. Revisions in federal income tax laws and interpretations of these laws could adversely affect the tax consequences of an investment in our shares. We and our shareholders may also be subject to state or local taxation in various state or local jurisdictions, including those in which we or our shareholders transact business or reside. State and local tax consequences may not be comparable to the federal income tax consequences discussed above. For example, if a state has not updated its REIT taxation provisions to permit taxable REIT subsidiaries, then our use of a taxable REIT subsidiary may disqualify us from favorable taxation as a REIT in that state. ERISA PLANS, KEOGH PLANS AND INDIVIDUAL RETIREMENT ACCOUNTS General Fiduciary Obligations Fiduciaries of a pension, profit-sharing or other employee benefit plan subject to Title I of the Employee Retirement Income Security Act of 1974, ERISA, must consider whether: o their investment in our shares satisfies the diversification requirements of ERISA; o the investment is prudent in light of possible limitations on the marketability of our shares; o they have authority to acquire our shares under the applicable governing instrument and Title I of ERISA; and o the investment is otherwise consistent with their fiduciary responsibilities. Trustees and other fiduciaries of an ERISA plan may incur personal liability for any loss suffered by the plan on account of a violation of their fiduciary responsibilities. In addition, these fiduciaries may be subject to a civil penalty of up to 20% of any amount recovered by the plan on account of a violation. Fiduciaries of any IRA, Roth IRA, Keogh Plan or other qualified retirement plan not subject to Title I of ERISA, referred to as "non-ERISA plans," should consider that a plan may only make investments that are authorized 19 by the appropriate governing instrument. Fiduciary shareholders should consult their own legal advisors if they have any concern as to whether the investment is consistent with the foregoing criteria. Prohibited Transactions Fiduciaries of ERISA plans and persons making the investment decision for an IRA or other non-ERISA plan should consider the application of the prohibited transaction provisions of ERISA and the Internal Revenue Code in making their investment decision. Sales and other transactions between an ERISA plan or a non-ERISA plan, and persons related to it are prohibited transactions. The particular facts concerning the sponsorship, operations and other investments of an ERISA plan or non-ERISA plan may cause a wide range of other persons to be treated as disqualified persons or parties in interest with respect to it. A prohibited transaction, in addition to imposing potential personal liability upon fiduciaries of ERISA plans, may also result in the imposition of an excise tax under the Internal Revenue Code or a penalty under ERISA upon the disqualified person or party in interest with respect to the plan. If the disqualified person who engages in the transaction is the individual on behalf of whom an IRA or Roth IRA is maintained or his beneficiary, the IRA or Roth IRA may lose its tax-exempt status and its assets may be deemed to have been distributed to the individual in a taxable distribution on account of the prohibited transaction, but no excise tax will be imposed. Fiduciary shareholders should consult their own legal advisors as to whether the ownership of our shares involves a prohibited transaction. Special Fiduciary and Prohibited Transactions Consequences The Department of Labor, which has administrative responsibility over ERISA plans as well as non-ERISA plans, has issued a regulation defining "plan assets." The regulation generally provides that when an ERISA or non-ERISA plan acquires a security that is an equity interest in an entity and that security is neither a "publicly offered security" nor a security issued by an investment company registered under the Investment Company Act of 1940, the ERISA plan's or non-ERISA plan's assets include both the equity interest and an undivided interest in each of the underlying assets of the entity, unless it is established either that the entity is an operating company or that equity participation in the entity by benefit plan investors is not significant. Each class of our shares, that is, our common shares and any class of preferred shares that we have issued or may issue, must be analyzed separately to ascertain whether it is a publicly offered security. The regulation defines a publicly offered security as a security that is "widely held," "freely transferable" and either part of a class of securities registered under the Securities Exchange Act of 1934, or sold under an effective registration statement under the Securities Act of 1933, provided the securities are registered under the Securities Exchange Act of 1934 within 120 days after the end of the fiscal year of the issuer during which the offering occurred. All our outstanding shares have been registered under the Securities Exchange Act of 1934. The regulation provides that a security is "widely held" only if it is part of a class of securities that is owned by 100 or more investors independent of the issuer and of one another. However, a security will not fail to be "widely held" because the number of independent investors falls below 100 subsequent to the initial public offering as a result of events beyond the issuer's control. Our common shares and our preferred shares have been widely held and we expect our common shares and our preferred shares to continue to be widely held. We expect the same to be true of any additional class of preferred stock that we may issue, but we can give no assurance in that regard. The regulation provides that whether a security is "freely transferable" is a factual question to be determined on the basis of all relevant facts and circumstances. The regulation further provides that, where a security is part of an offering in which the minimum investment is $10,000 or less, some restrictions on transfer ordinarily will not, alone or in combination, affect a finding that these securities are freely transferable. The restrictions on transfer enumerated in the regulation as not affecting that finding include: o any restriction on or prohibition against any transfer or assignment which would result in a termination or reclassification for federal or state tax purposes, or would otherwise violate any state or federal law or court order; o any requirement that advance notice of a transfer or assignment be given to the issuer and any requirement that either the transferor or transferee, or both, execute documentation setting forth representations as to compliance with any restrictions on transfer which are among those enumerated in the regulation as not affecting free transferability, including those described in the preceding clause of this sentence; o any administrative procedure which establishes an effective date, or an event prior to which a transfer or assignment will not be effective; and 20 o any limitation or restriction on transfer or assignment which is not imposed by the issuer or a person acting on behalf of the issuer. We believe that the restrictions imposed under our declaration of trust on the transfer of shares do not result in the failure of our shares to be "freely transferable." Furthermore, we believe that at present there exist no other facts or circumstances limiting the transferability of our shares which are not included among those enumerated as not affecting their free transferability under the regulation, and we do not expect or intend to impose in the future, or to permit any person to impose on our behalf, any limitations or restrictions on transfer which would not be among the enumerated permissible limitations or restrictions. Assuming that each class of our shares will be "widely held" and that no other facts and circumstances exist which restrict transferability of these shares, we have received an opinion of our counsel Sullivan & Worcester LLP that our shares will not fail to be "freely transferable" for purposes of the regulation due to the restrictions on transfer of the shares under our declaration of trust and that under the regulation the shares are publicly offered securities and our assets will not be deemed to be "plan assets" of any ERISA plan or non-ERISA plan that invests in our shares. Item 3. Legal Proceedings Although in the ordinary course of business we may become involved in legal proceedings, we are not aware of any material pending legal proceeding affecting us or any of our hotels for which we might become liable. Item 4. Submission of Matters to a Vote of Security Holders None. 21 PART II Item 5. Market for the Registrant's Common Equity and Related Shareholder Matters Our common shares are traded on the New York Stock Exchange (symbol: HPT). The following table sets forth for the periods indicated the high and low closing sale prices for our common shares as reported in the New York Stock Exchange Composite Transactions reports. 1999 High Low First Quarter $ 27.56 $ 25.50 Second Quarter $ 29.63 $ 26.56 Third Quarter $ 27.81 $ 22.19 Fourth Quarter $ 22.88 $ 18.00 2000 High Low First Quarter $ 21.13 $ 18.56 Second Quarter $ 24.94 $ 20.38 Third Quarter $ 25.25 $ 23.25 Fourth Quarter $ 23.25 $ 20.56 The closing price of the common shares on the New York Stock Exchange on March 21, 2001, was $26.38 per share. As of March 21, 2001, there were approximately 1,187 shareholders of record, and we estimate that as of such date there was in excess of 66,285 beneficial owners of the common shares. Information about distributions paid to common shareholders is summarized in the table below. Common share distributions are generally paid in the quarter following the quarter to which they relate. Common Annualized Distribution Common Per Share Distribution Rate 1999 First Quarter $0.68 $2.72 Second Quarter $0.69 $2.76 Third Quarter $0.69 $2.76 Fourth Quarter $0.69 $2.76 2000 First Quarter $0.69 $2.76 Second Quarter $0.69 $2.76 Third Quarter $0.70 $2.80 Fourth Quarter $0.70 $2.80 All common distributions shown in table above have been paid. We intend to continue to declare and pay future common share distributions on a quarterly basis. In order to qualify for the beneficial tax treatment accorded to REITs by Sections 856 through 860 of the Internal Revenue Code, we are required to make annual distributions to shareholders of at least 95% (90% beginning in our 2001 taxable year) of our taxable income. Distributions are made at the discretion of the Board of Trustees and depend on our earnings, cash available for distribution, financial condition, capital market conditions, growth prospects and such other factors as the Board of Trustees deems relevant. We intend to distribute substantially all of our "real estate investment trust taxable income" to our shareholders. 22 As previously reported on Form 8-K dated June 30, 2000, pursuant to our incentive share award plan, in May 2000 our three independent trustees each received a grant of 300 of our common shares, valued at $23.1875 per share, the closing price of the common shares on the New York Stock Exchange on May 16, 2000. The grants were made pursuant to the exemption from registration contained in Section 4(2) of the Securities Act of 1933, as amended. Item 6. Selected Financial Data The following table sets forth selected financial data for the five years ended December 31, 2000.
Year ended December 31, 2000 1999 1998 1997 1996 --------------- -------------- -------------- ---------------- -------------- (In thousands, except per share data) Operating Data: Revenues: Rental income..................... $ 234,377 $ 212,669 $ 157,223 $ 98,561 $ 69,514 FF&E reserve income............... 25,753 20,931 16,108 14,643 12,169 Interest income................... 2,893 3,618 1,630 928 946 ---------- ---------- ----------- ------------ --------- Total revenues................ 263,023 237,218 174,961 114,132 82,629 Expenses: Interest.......................... 37,682 37,352 21,751 15,534 5,646 Depreciation and amortization..... 84,303 74,707 54,757 31,949 20,398 Terminated acquisition costs...... -- -- -- 713 -- General and administrative........ 14,767 13,230 10,471 6,783 4,921 ---------- ---------- ----------- ------------ --------- Total expenses................ 136,752 125,289 86,979 54,979 30,965 ---------- ---------- ----------- ------------ --------- Income before extraordinary item.. 126,271 111,929 87,982 59,153 51,664 Extraordinary loss from extinguishment of debt....... -- -- 6,641 -- -- ---------- ---------- ----------- ------------ --------- Net income........................... 126,271 111,929 81,341 59,153 51,664 Preferred distributions.............. 7,125 5,106 -- -- -- ---------- ---------- ----------- ------------ --------- Net income available for common shareholders................ $ 119,146 $ 106,823 $ 81,341 $ 59,153 $ 51,664 ========== ========== =========== ============ ========= Per Common Share Data: Income before extraordinary item..... $2.24 $2.13 $2.08 $2.15 $2.23 Net income........................... $2.24 $2.13 $1.92 $2.15 $2.23 Net income available for common shareholders................ $2.11 $2.03 $1.92 $2.15 $2.23 Weighted average common shares outstanding................ 56,466 52,566 42,317 27,530 23,170 Balance Sheet Data (as of December 31): Real estate properties, net.......... $2,157,487 $2,082,999 $1,774,811 $1,207,868 $816,469 Total assets......................... 2,220,909 2,194,852 1,837,638 1,313,256 871,603 Debt, net of discount................ 464,748 414,780 414,753 125,000 125,000 Shareholders' equity................. 1,482,940 1,519,715 1,173,857 1,007,893 645,208
23 Item 7. Management's Discussion and Analysis of Financial Condition and Results of Operations Overview The following discussion should be read in conjunction with the financial statements and the notes thereto included elsewhere herein. Results of Operations Year Ended December 31, 2000 versus Year Ended December 31, 1999 Total revenues in 2000 were $263.0 million versus 1999 total revenues of $237.2 million. Total revenues were comprised principally of minimum rent of $228.7 million, percentage rent of $5.7 million and FF&E reserve income of $25.8 million in 2000 versus $209.0 million, $3.7 million and $20.9 million, respectively, in the 1999 period. The 9.4% increase in minimum rent revenue reflects the full year impact of 40 hotels acquired in 1999 and the partial impact of 12 hotels acquired during 2000. The increases in percentage rent revenue of 54.0% and FF&E reserve income of 23.0% result from the impact of additional hotels purchased as well as increased gross hotel revenues at our hotels. Interest income in 2000 was $2.9 million versus 1999 interest income of $3.6 million. The decrease is primarily due to a decrease in the average balance of cash offset somewhat by higher interest rates in 2000 versus 1999. Total expenses in 2000 were $136.8 million versus $125.3 million in 1999. The 9.1% increase is primarily the result of increases in depreciation and amortization, and general and administrative expenses. The increase in depreciation and amortization was $9.6 million, or 12.8%, and general and administrative expenses increased $1.5 million, or 11.6%. Depreciation and amortization and general and administrative expenses increased primarily as a result of new investments during 1999 and 2000. Interest expense in 2000 increased $0.3 million, or less than 0.1%. Net income available for common shareholders in 2000 was $119.1 million, or $2.11 per common share versus $106.8 million, or $2.03 per common share in 1999. The increase in net income available for common shareholders is primarily a result of an increase in revenue from new investments. Funds from operations, or FFO, is net income available for common shareholders before extraordinary and non-recurring items plus depreciation and amortization of real estate assets plus those deposits made into FF&E Reserve escrows by our tenants which are not included in our revenue, but which are restricted for use at our hotels. Cash available for distribution, or CAD, is FFO less all FF&E Reserve deposits plus amortization of deferred financing costs and other non-cash charges. FFO and CAD in 2000 were $218.7 million, or $3.87 per common share and $180.8 million, or $3.20 per common share, respectively. FFO and CAD in 1999 were $194.6 million, or $3.70 per common share and $163.3 million, or $3.11 per share, respectively, in 1999. Growth in FFO and CAD is primarily related to the effects of acquisitions in 1999 and 2000 and increased percentage rents offset by decreased interest income and increased preferred dividends. Growth in FFO per share, and CAD per share is due primarily to the effect of acquisitions in 1999 and 2000, and increases in percentage rents, offset somewhat by decreased interest income and increased dividends on preferred shares and an increase in the weighted average number of common shares. FFO and CAD do not represent cash flows from operating activities as determined in accordance with generally accepted accounting principles and should not be considered an alternative to net income as an indicator of our financial performance or to cash flows from operating activities as a measure of liquidity. Cash flow provided by (used for) operating, investing and financing activities was $188.3 million, ($123.2 million), and ($114.1 million), respectively for the year ended December 31, 2000. Cash flow from operations in 2000 increased 9.7% from $171.6 million in 1999 primarily due to the impact of new investments in 1999 and 2000. Cash used in investing activities decreased in 2000 over 1999 levels primarily because of investments in 12 hotels in 2000 versus 40 hotels in 1999. Cash was used in financing activities in 2000 versus 1999, during which cash was provided by financing activities primarily because of our equity issuance in 1999; we issued no equity in 2000. Our total assets increased to $2,221 million as of December 31, 2000, from $2,195 million as of December 31, 1999. The increase resulted primarily from hotel acquisitions completed in 2000 offset in part by the impact of depreciation expense accumulated on net real estate during the year. Year Ended December 31, 1999 versus Year Ended December 31, 1998 Total revenues in 1999 were $237.2 million versus 1998 total revenues of $175.0 million. Total revenues were comprised principally of minimum and percentage rent of $212.7 million and FF&E reserve income of $20.9 million in 1999 versus $157.2 million 24 and $16.1 million, respectively, in the 1998 period. During 1999 we earned percentage rent of $3.67 million versus $3.44 million in 1998. The 35.9% increase in minimum rent revenue reflects the full year impact of 51 hotels acquired in 1998 and the partial impact of 40 hotels acquired during 1999. The increases in percentage rent revenue of 6.7% and FF&E reserve income of 29.9% result from the impact of additional hotels purchased as well as increased gross hotel revenues at our hotels. Total expenses in 1999 were $125.3 million versus $87.0 million in 1998. The 44.0% increase is the result of increases in depreciation and amortization, interest and general and administrative expenses. The increase in depreciation and amortization was $20.0 million, or 36.4%, interest increased $15.6 million, or 71.7%, and general and administrative expenses increased $2.8 million, or 26.3%. Depreciation and amortization and general and administrative expenses increased primarily as a result of new investments since January 1, 1998. Interest expense in 1999 increased primarily as a result of an increase in the average daily balance of indebtedness outstanding. This increase in average daily balance was due to three 1998 issuances totaling $415 million of senior debt and borrowings under our revolving credit facility. Net income available for common shareholders in 1999 was $106.8 million, or $2.03 per common share versus $81.3 million, or $1.92 per common share in 1998. The increase in net income available for common shareholders is primarily a result of an increase in revenue from new investments and the 1998 extraordinary loss of $6.6 million recognized from the early extinguishment of debt, offset by preferred distributions paid in 1999. Funds from operations, or FFO, is net income available for common shareholders before extraordinary and non-recurring items plus depreciation and amortization of real estate assets plus those deposits made into FF&E Reserve escrows by our tenants which are not included in HPT's revenue, but which are restricted for use at HPT hotels. Cash available for distribution, or CAD, is FFO less all FF&E Reserve deposits plus amortization of deferred financing costs and other non-cash charges. FFO and CAD in 1999 were $194.6 million, or $3.70 per common share and $163.3 million, or $3.11 per common share, respectively. FFO and CAD were $152.8 million, or $3.61 per common share, and $130.3 million, or $3.08 per share, respectively, in 1998. Growth in FFO and CAD is primarily related to the effects of acquisitions in 1998 and 1999. FFO and CAD do not represent cash flows from operating activities as determined in accordance with generally accepted accounting principles and should not be considered an alternative to net income as an indicator of our financial performance or to cash flows from operating activities as a measure of liquidity. Cash flow provided by (used for) operating, investing and financing activities was $171.6 million, ($325.0 million), and $202.3 million, respectively, for the year ended December 31, 1999. Cash flow from operations in 1999 increased 27.7% from $134.4 million in 1998 primarily due to the impact of new investments in 1998 and 1999. Cash used in investing activities and provided by financing activities decreased in 1999 over 1998 levels primarily because of investments in 40 hotels in 1999 versus 51 hotels in 1998. Our total assets increased to $2,195 million as of December 31, 1999, from $1,838 million as of December 31, 1998. The increase resulted primarily from hotel acquisitions completed in 1999 offset in part by the impact of depreciation accumulated on net real estate during the year. Liquidity and Capital Resources In order to fund acquisitions and to accommodate occasional cash needs which may result from timing differences between the receipt of rents and the need to make distributions or pay operating expenses, we have entered into a revolving credit facility with a group of commercial banks. The credit facility is for up to $300 million, all of which was available at December 31, 2000. Drawings under the credit facility are unsecured. Funds may be drawn, repaid and redrawn until maturity, and no principal repayment is due until maturity. The credit facility matures in March 2002. Interest on borrowings under the credit facility are payable at a spread above LIBOR. In the second quarter of 2000 we issued 9.125% unsecured senior notes due 2010 with a face value of $50.0 million, raising net proceeds of $49.6 million. In the second quarter of 1999, we issued 3.0 million shares of 9.5% Series A Cumulative Redeemable Preferred Shares raising gross proceeds of $75.0 million, net proceeds of $72.2 million. Also in the second quarter of 1999, we issued 10.8 million common shares of beneficial interest, raising gross proceeds of $289.9 million, net proceeds of $274.7 million. The net proceeds of these offerings were used to repay all amounts outstanding under our revolving credit facility, acquire hotels and for general business purposes. At December 31, 2000, we had cash and cash equivalents of $24.6 million and the ability to draw up to the full amount, or $300.0 million, under our credit facility. At December 31, 2000, we had commitments to purchase two hotels for an aggregate of $55.4 million. These hotels were purchased during the first quarter of 2001 with a combination of cash on hand and borrowings on our credit facility. 25 We expect to use existing cash balances, borrowings under our credit facility or other lines of credit and/or net proceeds of offerings of equity or debt securities to fund future hotel acquisitions. To the extent we borrow on the credit facility, we will explore various refinancing alternatives in the short-term for both the timing and method of repayment of such amounts. Our primary source of cash to fund day to day operations, interest and distributions is the minimum and percentage rent we receive. Minimum rent is received from our tenants monthly in advance and percentage rent is received either monthly or quarterly in arrears. This flow of funds from rent has historically been sufficient for us to pay day to day operating expenses, interest and distributions. We believe that our operating cash flow will be sufficient to meet our operating expenses, interest and distribution payments. We have no debt which matures in the next twelve months and no principal or sinking-fund payments in the next twelve months. Our credit facility matures in 2002. To the extent we borrow on the credit facility and, as the maturity dates of our credit facility and term debt approach over the longer term, we will explore various alternatives for the repayment of amounts due or replacement of such credit facility or term debt with alternative facilities. Such alternatives in the short-term and long-term may include incurring additional long term debt and/or issuing new equity securities. On January 15, 1998, our shelf registration statement for up to $2 billion of securities, including debt securities, was declared effective by the Securities and Exchange Commission, or SEC. An effective shelf registration statement enables us to issue specific securities to the public on an expedited basis by filing a prospectus supplement with the SEC. We have $961.9 million available on our shelf registration statement as of December 31, 2000. Although there can be no assurance that we will consummate any debt or equity security offerings or other financings, we believe we will have access to various types of financing in the future, including investment grade debt or equity securities offerings, with which to finance future acquisitions and payment of our debt and other obligations. Property Leases As of March 21, 2001 we owned 224 hotels which are grouped into eleven combinations and leased to separate affiliates of publicly owned hotel companies including Marriott International, Inc., Host Marriott Corporation, Crestline Capital Corporation, Wyndham International, Inc., Prime Hospitality Corp., Candlewood Hotel Company and Security Capital Group, Inc. The tables on the following pages summarize the key terms of our leases and the operating results of our hotels including average occupancy, average daily rates, or ADR and revenue per available room, or RevPAR. 26
- -------------------- -------------------- --------------------- --------------------- -------------------- -------------------- Residence Inn by Residence Inn by Marriott(R)/Residence Courtyard by Residence Inn by Marriott(R)/Courtyard Marriott(R)/Courtyard Inn by Marriott(R)/ Lease Pool Marriott(R) Marriott(R) by Marriott(R) by Marriott(R)/Towneplace Courtyard by Suites by Marriott(R) Marriott(R)/ /SpringHill Suites TownePlace Suites by Marriott(R)(1) by Marriott(R) - -------------------- -------------------- --------------------- --------------------- -------------------- -------------------- Number of Hotels 53 18 14 19 17 Number of Rooms 7,610 2,178 1,819 2,756 2,663 Number of States 24 14 7 14 7 Tenant Subsidiary of Host Subsidiary of Host Subsidiary of Subsidiary of Subsidiary of Subleased to Subleased to Marriott Crestline(1) Marriott Subsidiary of Subsidiary of Crestline Crestline Manager Subsidiary of Subsidiary of Subsidiary of Subsidiary of Subsidiary of Marriott Marriott Marriott Marriott Marriott Investment at December 31, 2000 (000s) $512,025 $175,836 $148,812 $218,815 $203,643 Security Deposit (000s) $50,540 $17,220 $14,881 $22,552 $21,322 End of Initial Lease Term 2012 2010 2014 2015 2013 Renewal Options (2) 3 for 12 years each 1 for 10 years, 1 for 12 years, 2 for 10 years 2 for 10 years each 2 for 15 years each 1 for 10 years each Current Annual Minimum Rent (000s) $51,202 $17,584 $14,881 $22,552 $21,322 Percentage Rent (3) 5.0% 7.5% 7.0% 7.0% 7.0% Number of Comparable Hotels (4) 53 18 14 9 7 2000 (4): Occupancy 80.1% 83.8% 81.0% 79.3% 75.5% ADR $99.85 $105.09 $89.68 $108.29 $85.86 RevPAR $79.98 $88.07 $72.64 $85.87 $64.82 1999 (4): Occupancy 80.4% 83.0% 81.8% 77.0% 70.4% ADR $93.97 $100.96 $86.97 $101.28 $83.20 RevPAR $75.55 $83.80 $71.14 $77.99 $58.57 - -------------------- -------------------- --------------------- --------------------- -------------------- -------------------- (1) During 2000 this lease was expanded to 19 hotels from nine at of the end of 1999, extended three years to 2015 and a subsidiary of Crestline replaced a subsidiary of Marriott as tenant. As of December 31, 2000, we owned 17 of the 19 hotels; we purchased the remaining two in 2001. (2) Renewal options may be exercised by the tenant for all, but not less than all, of the hotels within a lease pool. (3) Each lease provides for payment to HPT as additional rent of a percentage of increases in total hotel sales over base year levels. (4) Includes only hotels open for at least a full year as of January 1, 2000.
27
- --------------------- --------------- --------------- --------------- -------------- --------------- --------------- Summerfield Suites by Candlewood Candlewood Homestead Lease Pool Wyndham(R) Wyndham(R) AmeriSuites(R) Suites(R) Suites(R) Studio Suites(R) - --------------------- --------------- --------------- --------------- -------------- --------------- --------------- Number of Hotels 12 15 24 17 17 18 Number of Rooms 2,321 1,822 2,929 1,839 2,053 2,399 Number of States 8 8 13 14 14 5 Tenant Subsidiary of Subsidiary of Subsidiary of Subsidiary of Subsidiary of Subsidiary of Wyndham Wyndham Prime(1) Candlewood Candlewood Security Capital Group Manager Subsidiary of Subsidiary of Subsidiary of Subsidiary of Subsidiary of Subsidiary of Wyndham Wyndham Prime(1) Candlewood Candlewood Security Capital Group Investment at December 31, 2000 (000s) $182,570 $240,000 $243,350 $118,500 $142,400 $145,000 Security Deposit (000s) $18,325 $15,000 $25,575 $12,081 $14,253 $15,960 End of Initial Lease Term 2014 2017 2013(1) 2011 2011 2015 Renewal Options (2) 4 for 12 4 for 12 3 for 15 3 for 15 3 for 15 2 for 15 years each years each years each years each years each years each Current Annual Minimum Rent (000s) $18,325 $25,000 $25,575 $12,081 $14,253 $15,960 Percentage Rent (3) 8.0% 7.5% 8.0% 10.0% 10.0% 10.0% Number of Comparable Hotels (4) 12 15 20 17 17 18 2000 (4): Occupancy 72.4% 82.3% 59.5%(5) 78.3% 77.8% 79.7% ADR $91.88 $126.86 $76.57(5) $55.01 $57.21 $50.67 RevPAR $66.52 $104.41 $45.56(5) $43.07 $44.51 $40.39 1999 (4): Occupancy 70.0% 81.3% 58.6%(5) 68.7% 70.2% 75.5%(6) ADR $95.60 $120.99 $78.24(5) $58.35 $59.05 $51.04(6) RevPAR $66.92 $98.36 $45.85(5) $40.09 $41.45 $38.54(6) - --------------------- --------------- --------------- --------------- -------------- --------------- --------------- (1) During 2000 this lease was assigned to a subsidiary of Prime Hospitality Corp. and extended two years to 2013. (2) Renewal options may be exercised by the tenant for all, but not less than all, of the hotels within a lease pool. (3) Each lease provides for payment to us as additional rent of a percentage of increases in total hotel sales over base year levels. (4) Represents only hotels open for at least a full year as of January 1, 2000. (5) Includes the 20 hotels in this lease pool which were open for at least one year prior to January 1, 2000, and information for periods in 2000 and 1999 prior to our acquisition of certain properties. (6) Includes information for periods prior to the acquisition of these properties by us in 1999.
28 Seasonality Our hotels have historically experienced seasonal differences typical of the hotel industry with higher revenues in the second and third quarters of calendar years compared with the first and fourth quarters. This seasonality is not expected to cause fluctuations in our rental income because we believe that the net revenues generated by our hotels will be sufficient for the lessees to pay rents on a regular basis notwithstanding seasonal fluctuations. Inflation We believe that inflation should not have a material adverse effect on us. Although increases in the rate of inflation may tend to increase interest rates which we may be required to pay for borrowed funds, we have a policy of obtaining interest rate caps in appropriate circumstances to protect us from interest rate increases. In addition, our leases provide for the payment of percentage rent to us based on increases in total sales, and such rent should increase with inflation. Certain Considerations The discussion and analysis of our financial condition and results of operations requires us to make certain estimates and assumptions and contains certain statements of our beliefs, intentions or expectations concerning projections, plans, future events and performance. The estimates, assumptions and statements, such as those relating to our ability to expand our portfolio, performance of our assets, the ability of our operators to pay rent, remain competitive or improve hotel operating revenues or results, our ability to make distributions, our tax status as a "real estate investment trust," the ability to appropriately balance the use of debt and equity and to access capital markets, depend upon various factors over which we and/or our lessees have or may have limited or no control. Those factors include, without limitation, the status of the economy, capital markets (including prevailing interest rates), compliance with the changes to regulations within the hospitality industry, competition, changes to federal, state and local legislation and other factors. We cannot predict the impact of these factors, if any. However, these factors could cause our actual results for subsequent periods to be different from those stated, estimated or assumed in this discussion and analysis of our financial condition and results of operations. We believe that our estimates and assumptions are reasonable and prudent at this time. Item 7A. Quantitative and Qualitative Disclosures About Market Risk We are exposed to risks associated with market changes in interest rates. We manage our exposure to this market risk by monitoring our available financing alternatives. Our strategy to manage exposure to changes in interest rates is unchanged from December 31, 1999. Other than as described below we do not foresee any significant changes in our exposure to fluctuations in interest rates or in how we manage this exposure in the near future. At December 31, 2000, our total outstanding debt consisted of four issues of fixed rate, senior unsecured notes:
Annual Interest Principal Balance Coupon Payments Maturity Interest Payments Due ----------------- ------ -------- -------- --------------------- $115 million 8.250 % $9.5 million 2005 Monthly $150 million 7.000 % $10.5 million 2008 Semi-Annually $150 million 8.500 % $12.8 million 2009 Monthly $50 million 9.125 % $4.6 million 2010 Semi-Annually ------------- -------------- $465 million $37.4 million
No principal repayments are due under these notes until maturity. Because interest on all of our outstanding debt at December 31, 2000, is at fixed rates, changes in interest rates during the term of this debt will not effect our operating results. If at maturity these notes were refinanced at interest rates which are 10% higher than shown above, our per annum interest cost would increase by approximately $3.7 million. Based on the balances outstanding as of December 31, 2000, a hypothetical immediate 10% change in interest rates would change the fair value of our fixed rate debt obligations by approximately $19.2 million. Each of our fixed rate debt arrangements allows us to make repayments earlier than the stated maturity date. Our $115 million 8.25% monthly notes due 2005 are callable by us at par any time after November 15, 2001. Our $150 million 8.5% monthly pay notes due 2009 are callable by us at par any time after December 15, 2002. In other cases we are allowed to make prepayments only at a premium to face value. These prepayment rights may afford us the opportunity to mitigate the risk of refinancing at maturity at higher rates by refinancing prior to maturity. 29 Our revolving credit facility bears interest at floating rates and matures in 2002. As of December 31, 2000, there was zero outstanding and $300 million was available for drawing under our revolving credit facility. Our revolving credit facility is available to finance acquisitions and for general business purposes. Repayments under the revolving credit facility may be made at any time without penalty. Our exposure to fluctuations in interest rates may in the future increase if we incur debt to fund future acquisitions or otherwise. The interest rate market which has an impact upon us is the U.S. dollar interest rate market for corporate obligations, including floating rate LIBOR based obligations and fixed rate obligations. Item 8. Financial Statements and Supplementary Data Our financial statements and financial statement schedule begin on Page F-1 (see index in Item 14(a)). One of our tenants, HMH HPT Courtyard LLC, a subsidiary of Host Marriott Corporation, leases 53 hotels from us which represent 22% of our investments, at cost. During 1999, with our consent, HMH HPT Courtyard LLC began to sublease these 53 properties to CCMH Courtyard I LLC, a subsidiary of Crestline Capital Corporation. The financial statements for HMH HPT Courtyard LLC as of December 31, 2000, and December 31, 1999, and for the three fiscal years ended December 31, 2000, begin on page F-15. The financial statements of CCMH Courtyard I LLC as of December 31, 2000, and for the year ended December 31, 2000, begin on page F-27. Item 9. Changes in and Disagreements with Accountants on Accounting and Financial Disclosure None. PART III The information in Part III (Items, 10, 11, 12 and 13) is incorporated by reference to our definitive Proxy Statement, which is expected to be filed not later than 120 days after the end of our fiscal year. 30 PART IV Item 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K (a) Index to Financial Statements and Financial Statement Schedules
The following audited consolidated financial statements and schedule of Hospitality Properties Trust are included herein on the pages indicated: Page Report of Independent Public Accountants.......................................... F-1 Consolidated Balance Sheet as of December 31, 2000 and 1999....................... F-2 Consolidated Statement of Income for the three years ended December 31, 2000...... F-3 Consolidated Statement of Shareholders' Equity for the three years ended December 31, 2000................................................................. F-4 Consolidated Statement of Cash Flows for the three years ended December 31, 2000................................................................. F-5 Notes to Consolidated Financial Statements........................................ F-6 Report of Independent Public Accountants on Schedule.............................. F-11 Schedule III - Real Estate and Accumulated Depreciation........................... F-12 All other schedules for which provision is made in the applicable accounting regulations of the Securities and Exchange Commission are not required under the related instructions or are inapplicable, and therefore have been omitted. The following audited financial statements of HMH HPT Courtyard LLC, a subsidiary of Host Marriott Corporation and the lessee of 53 of our Courtyard by Marriott(R) hotels (22% of our investments, at cost) are included herein on the pages indicated: Page Introduction to Supplementary Financial Statements of HMH HPT Courtyard LLC.......................................................... F-14 Report of Independent Public Accountants.......................................... F-15 Balance Sheets as of December 31, 2000 and December 31, 1999...................... F-16 Statements of Operations for the fiscal years ended December 31, 2000, December 31, 1999 and January 2, 1999............................................. F-17 Statements of Shareholder's and Member's Equity for the fiscal years ended December 31, 2000, December 31, 1999 and January 2, 1999.................... F-18 Statements of Cash Flows for the fiscal years ended December 31, 2000, December 31, 1999 and January 2, 1999............................................. F-19 Notes to Financial Statements..................................................... F-20 31 The following audited financial statements of CCMH Courtyard I LLC, a subsidiary of Crestline Capital Corporation, and the sublessee of the 53 Courtyard by Marriott(R) hotels leased to HMH HPT Courtyard, LLC, are included herein on the pages indicated. These assets are subleased by CCMH Courtyard I LLC from HMH HPT Courtyard LLC, a subsidiary of Host Marriott Corporation, whose audited financial statements appear on the pages indicated above. Page Introduction to Supplementary Financial Statements of CCMH Courtyard I LLC........................................................... F-26 Report of Independent Public Accountants.......................................... F-27 Balance Sheets as of December 29, 2000 and December 31, 1999...................... F-28 Statements of Operations for the fiscal years ended December 29, 2000 and December 31, 1999................................................................. F-29 Statements of Member's Equity for the fiscal years ended December 29, 2000 and December 31, 1999........................................... F-30 Statements of Cash Flows for the fiscal years ended December 29, 2000 and December 31, 1999............................................................. F-31 Notes to Financial Statements..................................................... F-32
(b) Reports on Form 8-K During the fourth quarter of 2000, the Company did not file any Current Reports on Form 8-K. Exhibits 3.1 Composite copy of Amended and Restated Declaration of Trust dated August 21, 1995, as amended to date. (Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1998) 3.2 Articles Supplementary dated June 2, 1997. (Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1997) 3.3 Articles Supplementary dated April 8, 1999. (Filed herewith) 3.4 Articles Supplementary dated May 16, 2000. (Filed herewith) 3.5 Amended and Restated Bylaws of the Company, as amended. (Incorporated by reference to the Company's Current Report on Form 8-K dated June 30, 2000) 4.1 Form of Common Share Certificate. (Incorporated by reference to the Company's Registration Statement on Form S-11 (File No. 33-92330)) 4.2 Form of 9-1/2% Series A Cumulative Redeemable Preferred Share Certificate. (Incorporated by reference to the Company's Report on Form 10-K for the year ended December 31, 1999) 4.3 Rights Agreement, dated as of May 20, 1997, between the Company and State Street Bank and Trust Company, as Rights Agent. (Incorporated by reference to the Company's Current Report on Form 8-K dated May 29, 1997) 4.4 Indenture, dated as of February 25, 1998, between the Company and State Street Bank and Trust Company. (Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1997) 32 4.5 Supplemental Indenture No. 1, dated as of February 25, 1998, between the Company and State Street Bank and Trust Company, relating to the Company's 7.00% Senior Notes due 2008, including form thereof. (Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1997) 4.6 Supplemental Indenture No. 2, dated as of November 12, 1998, by and between the Company and State Street Bank and Trust Company, relating to the Company's 8-1/4% Monthly Income Senior Notes due 2005, including form thereof. (Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1998) 4.7 Supplemental Indenture No. 3, dated as of December 16, 1998, by and between the Company and State Street Bank and Trust Company, relating to the Company's 8-1/2% Monthly Income Senior Notes due 2009, including form thereof. (Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1998) 4.8 Supplemental Indenture No. 4 dated as of July 14, 2000, between the Company and State Street Bank and Trust Company, relating to the Company's 9.125% Senior Notes due 2010, including form thereof. (Filed herewith) 4.9 Supplemental Indenture No. 5, dated as of July 28, 2000, between the Company and State Street Bank and Trust Company, relating to the Company's 9.125% Senior Notes due 2010, including form thereof. (Filed herewith) 8.1 Opinion of Sullivan & Worcester LLP as to certain tax matters. (Filed herewith) 10.1 Advisory Agreement, dated January 1, 1998, by and between REIT Management & Research, Inc. and the Company (+). (Incorporated by reference to the Company's Current Report on Form 8-K dated February 11, 1998) 10.2 The Company's 1995 Incentive Share Award Plan (+). (Incorporated by reference to the Company's Registration Statement on Form S-11 (File No. 33-92330)) 10.3 Amended and Restated Revolving Credit Agreement, dated as of March 19, 1998, among the Company, as borrower, the institutions party thereto from time to time as lenders, and Dresdner Bank AG, New York Branch and Grand Cayman Branch, as Agent. (Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1997) 10.4 Second Amended and Restated Revolving Credit Agreement, dated as of June 10, 1998, among the Company, as borrower, the institutions party thereto from time to time as lenders, and Dresdner Bank AG, New York Branch and Grand Cayman Branch, as Agent. (Incorporated by reference to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 1998) 10.5 First Amendment and Limited Waiver to Credit Agreement, dated as of January 26, 2001, among the Company, as borrower, the institutions party thereto from time to time as lenders, and Dresdner Bank AG, New York Branch and Grand Cayman Branch, as Agent. (Filed herewith) 10.6 Investment Manager's Subordination Agreement, dated March 19, 1998, among REIT Management & Research, Inc., the Company and Dresdner Bank AG, New York Branch and Grand Cayman Branch (Incorporated by reference to the Company's Annual Report on Form 10-K for the year ended December 31, 1997) 10.7 Form of Courtyard Management Agreement between HMH Courtyard Properties, Inc., d/b/a/ HMH Properties, Inc. and Courtyard Management Corporation. (Incorporated by reference to the Company's Registration Statement on Form S-11 (File No. 33-92330)) 10.8 Form of First Amendment to Courtyard Management Agreement between Courtyard Management Corporation and the Company and Consolidation Letter Agreement by and between Courtyard Management Corporation and the Company. (Incorporated by reference to the Company's Registration Statement on Form S-11 (File No. 33-92330)) 10.9 Form of Lease Agreement between the Company and HMH HPT Courtyard, Inc. (Incorporated by reference to the Company's Registration Statement on Form S-11 (File No. 33-92330)) 33 10.10 Amended and Restated Master Lease Agreement, dated as of December 23, 1999, by and between HPTSHC Properties Trust and Summerfield HPT Lease Company, L.P. (Incorporated by reference to the Company's Report on Form 10-K for the year ended December 31, 1999) 10.11 Purchase and Sale Agreement, dated as of December 29, 1998, by and among Residence Inn by Marriott, Inc., Courtyard Management Corporation, Nashville Airport Hotel, LLC, St. Louis Airport Hotel, LLC and TownePlace Management Corporation, as sellers, and the Company, as purchaser. (Incorporated by reference to the Company's Current Report on Form 8-K dated March 23, 1999) 10.12 Limited Rent Guaranty, dated as of December 29, 1998, by and among Marriott International, Inc., the Company and HPTMI III Properties Trust. (Incorporated by reference to the Company's Current Report on Form 8-K dated March 23, 1999) 10.13 Agreement to Lease, dated as of December 29, 1998, by and between the Company and CRTM17 Tenant Corporation (including form of lease). (Incorporated by reference to the Company's Current Report on Form 8-K dated March 23, 1999) 10.14 Master Lease Agreement, dated as of April 30, 1999, by and among the Company, HPTCY Properties Trust and HMH HPT Courtyard LLC. (Incorporated by reference to the Company's Report on Form 10-K for year ended December 31, 1999) 12.1 Ratio of Earnings to Fixed Charges. (Filed herewith) 12.2 Ratio of Earnings to Combined Fixed Charges and Preferred Distributions. (Filed herewith) 21.1 Subsidiaries of the Registrant. (Filed herewith) 23.1 Consent of Arthur Andersen LLP. (Filed herewith) 23.2 Consent of Sullivan & Worcester LLP. (included in Exhibit 8.1 to this Annual Report on Form 10-K) (+) Management contract or compensatory plan or agreement. 34 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To the Trustees and Shareholders of Hospitality Properties Trust: We have audited the accompanying consolidated balance sheet of Hospitality Properties Trust and subsidiaries (the "Company") as of December 31, 2000 and 1999, and the related consolidated statements of income, shareholders' equity and cash flows for each of the three years in the period ended December 31, 2000. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the consolidated financial statements referred to above present fairly, in all material respects, the financial position of Hospitality Properties Trust and subsidiaries as of December 31, 2000 and 1999 and the results of their operations and their cash flows for each of the three years in the period ended December 31, 2000, in conformity with accounting principles generally accepted in the United States. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Vienna, Virginia January 12, 2001 F-1
HOSPITALITY PROPERTIES TRUST CONSOLIDATED BALANCE SHEET (in thousands, except share data) As of December 31, ---------------------------- 2000 1999 ---- ---- ASSETS Real estate properties, at cost: Land............................................................ $319,219 $304,792 Buildings, improvements and equipment........................... 2,110,202 1,965,838 --------- --------- 2,429,421 2,270,630 Less accumulated depreciation................................... 271,934 187,631 ---------- ---------- 2,157,487 2,082,999 Cash and cash equivalents......................................... 24,601 73,554 Restricted cash (FF&E reserve).................................... 27,306 26,034 Other assets, net................................................. 11,515 12,265 ----------- ----------- $2,220,909 $2,194,852 ========== ========== LIABILITIES AND SHAREHOLDERS' EQUITY Senior notes, net of discount..................................... $464,748 $414,780 Security and other deposits....................................... 257,377 246,242 Accounts payable and other........................................ 15,071 12,866 Due to affiliate.................................................. 773 1,249 ---------- --------- Total liabilities............................................... 737,969 675,137 Shareholders' equity: Series A preferred shares; 9 1/2% cumulative redeemable; no par value; 3,000,000 shares issued and outstanding............ 72,207 72,207 Common shares of beneficial interest; $.01 par value; 56,472,512 and 56,449,743 shares issued and outstanding, respectively..................................... 565 564 Additional paid-in capital...................................... 1,506,976 1,506,494 Cumulative net income........................................... 441,707 315,436 Cumulative preferred distributions.............................. (12,231) (5,106) Cumulative common distributions................................. (526,284) (369,880) --------- --------- Total shareholders' equity...................................... 1,482,940 1,519,715 --------- --------- $2,220,909 $2,194,852 ========== ==========
The accompanying notes are an integral part of these financial statements. F-2
HOSPITALITY PROPERTIES TRUST CONSOLIDATED STATEMENT OF INCOME (in thousands, except per share data) Year Ended December 31, ------------------------------------ 2000 1999 1998 ---- ---- ---- Revenues: Rental income: Minimum rent................................... $228,733 $209,003 $153,787 Percentage rent................................ 5,644 3,666 3,436 --------- --------- --------- 234,377 212,669 157,223 FF&E reserve income.............................. 25,753 20,931 16,108 Interest income.................................. 2,893 3,618 1,630 --------- --------- --------- Total revenues................................. 263,023 237,218 174,961 Expenses: Interest (including amortization of deferred financing costs of $2,068, $2,223, and $2,599, respectively)...................... 37,682 37,352 21,751 Depreciation and amortization.................... 84,303 74,707 54,757 General and administrative....................... 14,767 13,230 10,471 ------ ------ ------ Total expenses................................. 136,752 125,289 86,979 ------- ------- ------ Income before extraordinary item................... 126,271 111,929 87,982 Extraordinary item- loss from early extinguishment of debt......................... -- -- 6,641 ------------ ------------ ------- Net income......................................... 126,271 111,929 81,341 Preferred distributions............................ 7,125 5,106 -- --------- --------- ----------- Net income available for common shareholders....... $119,146 $106,823 $81,341 ======== ======== ======= Weighted average common shares outstanding......... 56,466 52,566 42,317 Basic and diluted earnings (loss) per common share: Income before extraordinary item............... $2.24 $2.13 $2.08 Extraordinary item............................. -- -- (.16) -------- ------- ------ Net income..................................... $2.24 $2.13 $1.92 ===== ===== ===== Net income available for common shareholders.................................. $2.11 $2.03 $1.92 ===== ===== =====
The accompanying notes are an integral part of these financial statements. F-3
HOSPITALITY PROPERTIES TRUST CONSOLIDATED STATEMENT OF SHAREHOLDERS' EQUITY (in thousands, except share data) Preferred Shares Common Shares ---------------------------------- ------------------------------ Number Number Additional Cumulative of Preferred Cumulative of Common Cumulative Paid-In Net Shares Shares Distributions Shares Shares Distributions Capital Incomes Total ------ ------ ------------- ------ ------ ------------- ------- -------- ---- Balance at December 31, 1997....................... -- $-- $-- 38,878,295 $389 $(147,735) $1,033,073 $122,166 $1,007,893 Issuance of shares, net.... -- -- -- 6,692,413 67 -- 196,938 -- 197,005 Common share grants........ -- -- -- 24,831 -- -- 838 -- 838 Net income................. -- -- -- -- -- -- -- 81,341 81,341 Distributions.............. -- -- -- -- -- (113,220) -- -- (113,220) --------- ------- --------- ---------- ------ ---------- ---------- -------- ---------- Balance at December 31, 1998....................... -- -- -- 45,595,539 456 (260,955) 1,230,849 203,507 1,173,857 Issuance of shares, net.... 3,000,000 72,207 -- 10,812,400 108 -- 274,565 -- 346,880 Common share grants........ -- -- -- 41,804 -- -- 1,080 -- 1,080 Net income................. -- -- -- -- -- -- -- 111,929 111,929 Distributions.............. -- -- (5,106) -- -- (108,925) -- -- (114,031) --------- ------- --------- ---------- ------ ---------- ---------- -------- ---------- Balance at December 31, 1999....................... 3,000,000 72,207 (5,106) 56,449,743 564 (369,880) 1,506,494 315,436 1,519,715 Common share grants........ -- -- -- 22,769 1 -- 482 -- 483 Net income................. -- -- -- -- -- -- -- 126,271 126,271 Distributions.............. -- -- (7,125) -- -- (156,404) -- -- (163,529) --------- ------- --------- ---------- ------ ---------- ---------- -------- ---------- Balance at December 31, 2000....................... 3,000,000 $72,207 $(12,231) 56,472,512 $565 $(526,284) $1,506,976 $441,707 $1,482,940 ========= ======= ========= ========== ====== ========== ========== ======== ==========
The accompanying notes are an integral part of these financial statements. F-4
HOSPITALITY PROPERTIES TRUST CONSOLIDATED STATEMENT OF CASH FLOWS (in thousands) Year Ended December 31, ------------------------------------ 2000 1999 1998 ---- ---- ---- Cash flows from operating activities: Net income....................................... $126,271 $111,929 $81,341 Adjustments to reconcile net income to cash provided by operating activities: Extraordinary item............................. -- -- 6,641 Depreciation and amortization.................. 84,303 74,707 54,757 Amortization of deferred financing costs as interest....................................... 2,068 2,223 2,599 FF&E reserve income............................ (25,753) (20,931) (16,108) Changes in assets and liabilities: (Increase)/decrease in other assets......... (541) 1,172 1,341 Increase in accounts payable and other...... 2,235 2,036 3,701 (Decrease)/increase in due to affiliate..... (238) 485 128 -------- -------- -------- Cash provided by operating activities.......... 188,345 171,621 134,400 -------- -------- -------- Cash flows from investing activities: Real estate acquisitions......................... (134,353) (365,201) (613,846) Increase in security and other deposits.......... 16,410 40,224 59,356 Refund of other deposits......................... (5,275) -- -- Purchase of FF&E reserve......................... -- -- (3,377) -------- -------- -------- Cash used in investing activities.............. (123,218) (324,977) (557,867) -------- -------- -------- Cash flows from financing activities: Proceeds from issuance of preferred shares, net.. -- 72,207 -- Proceeds from issuance of common shares, net..... -- 274,673 197,005 Debt issuance, net of discount................... 49,938 -- 414,730 Repayment of debt................................ -- -- (125,000) Draws on credit facility......................... 42,000 172,000 307,000 Repayments on credit facility.................... (42,000) (172,000) (307,000) Deferred finance costs incurred.................. (489) -- (13,222) Distributions to preferred shareholders.......... (7,125) (5,106) -- Distributions to common shareholders............. (156,404) (139,474) (107,164) -------- -------- -------- Cash (used in) provided by financing activities.................................. (114,080) 202,300 366,349 -------- -------- -------- (Decrease)/increase in cash and cash equivalents... (48,953) 48,944 (57,118) Cash and cash equivalents at beginning of period... 73,554 24,610 81,728 -------- -------- -------- Cash and cash equivalents at end of period......... $24,601 $73,554 $24,610 ======== ======== ======== Supplemental cash flow information: Cash paid for interest........................... $33,508 $35,028 $15,387 Non-cash investing and financing activities: Property managers deposits in FF&E reserve....... 23,212 18,670 14,041 Purchases of fixed assets with FF&E reserve...... (24,698) (17,694) (7,853)
The accompanying notes are an integral part of these financial statements. F-5 HOSPITALITY PROPERTIES TRUST NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (dollar amounts in thousands, except per share amounts) 1. Organization Hospitality Properties Trust ("HPT") is a Maryland real estate investment trust organized on February 7, 1995, which invests in hotels. At December 31, 2000, HPT, directly and through subsidiaries, owned 222 properties. The properties of HPT and its subsidiaries (the "Company") are leased to and managed by subsidiaries (the "Lessees" and the "Managers") of companies unaffiliated with HPT: Host Marriott Corporation ("Host"); Marriott International, Inc. ("Marriott"); Crestline Capital Corporation ("Crestline"); Wyndham International, Inc.; Prime Hospitality Corporation ("Prime"); Candlewood Hotel Company, Inc.; and Security Capital Group, Inc. 2. Summary of Significant Accounting Policies Consolidation. These consolidated financial statements include the accounts of HPT and its subsidiaries, all of which are 100% owned directly or indirectly by HPT. All intercompany transactions have been eliminated. Real estate properties. Real estate properties are recorded at cost. Depreciation is provided for on a straight-line basis over estimated useful lives of 7 to 40 years. The Company periodically evaluates the carrying value of its long-lived assets in accordance with Statement of Financial Accounting Standards No. 121. Cash and cash equivalents. Highly liquid investments with maturities of three months or less at date of purchase are considered to be cash equivalents. The carrying amount of cash and cash equivalents is equal to its fair value. Deferred financing costs. Costs incurred to borrow are capitalized and amortized over the term of the related borrowing. The unamortized balance was $8,643, $10,221 and $12,644 at December 31, 2000, 1999 and 1998, respectively, net of accumulated amortization of $5,009, $2,941 and $893, respectively. Financial instruments--interest rate cap agreements. The Company had entered into interest rate protection agreements to limit exposure to risks of rising interest rates. In May 1999 the Company sold these agreements for the approximate carrying value at the time of the sale with no resulting gain or loss. A $1,402 charge is included in 1998 interest expense for the difference between the carrying amount of the agreements and their market value at the time the related debt was repaid. As of December 31, 2000, the Company was not a party to any interest rate cap or swap agreements. Revenue recognition. Rental income from operating leases is recognized on a straight line basis over the life of the lease agreements. Percentage rent is recognized when all contingencies are met and rent is earned. Some of the Company's leases provide that FF&E Reserve escrows are owned by the Company. All other leases provide that FF&E Reserve escrows are owned by the tenant and the Company has a security and remainder interest in the escrow account. When the Company owns the escrow, generally accepted accounting principles require that payments into the escrow be reported as additional rent. When the Company has a security and remainder interest in the escrow account, deposits are not included in revenue. Per common share amounts. Per common share amounts are computed using the weighted average number of common shares outstanding during the period. The Company has no common share equivalents, instruments convertible into common shares or other dilutive instruments. Use of estimates. The preparation of financial statements in conformity with generally accepted accounting principles requires management to make estimates and assumptions that affect reported amounts. Actual results could differ from those estimates. F-6 HOSPITALITY PROPERTIES TRUST NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued) (dollar amounts in thousands, except per share amounts) Segment Information. The Company derives its revenues from a single line of business, real estate leasing. Income taxes. The Company is a real estate investment trust under the Internal Revenue Code of 1986. The Company is not subject to Federal income taxes on its net income provided it distributes its taxable income to shareholders and meets certain other requirements. The characterization of the distributions for 2000, 1999 and 1998 was 85.1%, 100% and 75.3% ordinary income, respectively, and 14.9%, 0.0% and 24.7% return of capital, respectively. New accounting pronouncements. In December 1999 the Securities and Exchange Commission released Staff Accounting Bulletin No. 101 ("SAB 101"). SAB 101 had no impact on HPT's annual results of operations. SAB 101 required recognition of certain percentage rental income be deferred from the first, second and third quarters to the fourth quarter within the year. HPT adopted SAB 101 beginning January 1, 2000, without restatement of prior periods. The Financial Accounting Standards Board issued Statement No. 133 "Accounting for Derivative Instruments and Hedging Activities" ("FAS 133") in 1998. FAS 133 must be adopted for the Company's year 2001 financial statements and is expected to have no impact on the Company's financial condition or results of operations. 3. Preferred Shares In March 1999 the Company issued 3,000,000 Series A cumulative redeemable preferred shares in a public offering, each with a distribution rate of $2.375 per annum, payable in equal quarterly amounts. Each Series A preferred share has a liquidation preference of $25. Series A preferred shares are redeemable, at the Company's option, for $25 each plus accrued and unpaid distributions at any time on or after April 12, 2004. As of December 31, 2000, the Company had 3,000,000 outstanding preferred shares with an aggregate liquidation preference of $75,000. 4. Real Estate Properties The Company's properties are leased pursuant to long term operating leases with initial terms expiring between 2010 and 2017. The leases provide for various renewal terms totaling 20-48 years. Each lease is a triple net lease and generally requires the lessee to pay: minimum rent; percentage rent of between 5% and 10% of increases in total hotel sales over a base year threshold amount; 5%-6% of total hotel sales into reserves escrowed for replacement and refurbishment of the Company's hotels ("FF&E Reserve"); and all operating costs associated with the leased property. Each lessee has posted a security deposit generally equal to one year's minimum rent. Each of the Company's properties is part of a portfolio of properties leased to a single tenant. At December 31, 2000, the Company owned 11 portfolios of hotel properties, ranging in size from 12 to 53 hotels. Each lease contains cross default provisions and the ability to use FF&E Reserves generated by all hotels in the portfolio for the maintenance and refurbishment of any hotel within the portfolio. If the FF&E Reserve is not sufficient to maintain the properties in good working order and repair, or in certain other cases, the Company may make the expenditures, in which case annual minimum rent is increased. The Company's real estate properties, at cost, consisted of land of $319,219, building and improvements of $1,837,888 and furniture, fixtures and equipment of $272,314, as of December 31, 2000, and land of $304,792, building and improvements of $1,731,142 and furniture, fixtures and equipment of $234,696, as of December 31, 1999. During 2000, 1999 and 1998, the Company purchased and leased 12, 40 and 51 properties, respectively, for aggregate purchase prices of $128,548, $361,000 and $606,000 excluding closing costs, respectively. As of December 31, 2000, the Company owned and leased 222 hotel properties, and was committed to purchase two additional hotels. During 2000, 1999 and 1998, the Company invested $5,805, $1,787 and $1,280, respectively, in its existing hotels in excess of amounts funded from FF&E Reserves. As a result of these additional investments, tenant obligations for annual minimum lease payments increased $581, $179 and $128, respectively. Future minimum lease payments to be received by the Company during the remaining initial terms of its leases total $3,157,178 ($244,709 annually). As of December 31, 2000, the weighted average remaining initial term F-7 HOSPITALITY PROPERTIES TRUST NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued) (dollar amounts in thousands, except per share amounts) of the Company's leases was approximately 13.4 years, and the weighted average remaining total term (including all renewal options) was approximately 49.5 years. As of December 31, 2000, the Company was committed to the purchase of two hotels for a total of $55,407. 5. Indebtedness
December 31, ------------------------------------ 2000 1999 ------------------------------------ Revolving credit facility, unsecured.......................... $ -- $ -- 7% Senior Notes, unsecured, due 2008.......................... 150,000 150,000 8.25% Monthly Income Senior Notes, unsecured, due 2005........ 115,000 115,000 8.5% Monthly Income Senior Notes, unsecured, due 2009......... 150,000 150,000 9.125% Senior Notes, unsecured, due 2010...................... 50,000 -- Less: unamortized discounts................................... (252) (220) ---------------- ---------------- $ 464,748 $ 414,780 ================ ================
In July 2000 the Company issued $50,000 of 9.125% unsecured notes due 2010 ("9.125% Notes"). The 9.125% Notes mature in July 2010 and are prepayable at any time. If prepaid, the redemption price will equal the outstanding principal of the 9.125% Notes being redeemed plus accrued interest and, if prepaid prior to May 2010, a "make-whole amount" (as defined). Interest is payable semi-annually in arrears. In December 1998 the Company issued $150,000 of unsecured 8.5% Monthly Income Senior Notes ("8.5% Notes") which mature in January 2009. The 8.5% Notes cannot be redeemed prior to December 15, 2002. From and after December 15, 2002, the Company may redeem some or all of the 8.5% Notes from time to time before they mature. The redemption price will equal the outstanding principal of the 8.5% Notes being redeemed plus accrued interest. Interest is payable monthly in arrears. In November 1998 the Company issued $115,000 of unsecured 8.25% Monthly Income Senior Notes ("8.25% Notes") which mature in November 2005. The 8.25% Notes cannot be redeemed prior to November 15, 2001. From and after November 15, 2001, the Company may redeem some or all of the 8.25% Notes from time to time before they mature. The redemption price will equal the outstanding principal of the 8.25% Notes being redeemed plus accrued interest. Interest is payable monthly in arrears. In 1998 the Company entered into a new $300,000 unsecured revolving credit facility (the "Credit Facility"). The Credit Facility matures in March 2002 and bears interest at LIBOR plus a spread based on the Company's senior unsecured debt ratings. The Credit Facility contains financial covenants requiring the Company to, among other things, maintain a debt to asset ratio (as defined) of no more than 50% and meet certain debt service coverage ratios (as defined). The weighted average interest rate on Credit Facility borrowings during 2000 was 8.3%. As of December 31, 2000, the Company had zero outstanding borrowings and $300,000 available under the Credit Facility. In February 1998 the Company issued $150,000 of 7% unsecured notes due 2008 ("7% Notes"). The 7% Notes mature in March 2008 and are prepayable at any time. If prepaid, the redemption price will equal the outstanding principal of the 7% Notes being redeemed plus accrued interest and a "make-whole amount" (as defined). Interest is payable semi-annually in arrears. As of December 31, 2000, none of the Company's assets were pledged or mortgaged. As of December 31, 2000, the aggregate market value of the 9.125% Notes, the 8.5% Notes, the 8.25% Notes and the 7% Notes was $447,630. F-8 HOSPITALITY PROPERTIES TRUST NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued) (dollar amounts in thousands, except per share amounts) 6. Transactions with Affiliates The Company has an agreement with REIT Management & Research, Inc. ("RMR") whereby RMR provides investment, management and administrative services to the Company. RMR is compensated at an annual rate equal to 0.7% of HPT's average real estate investments up to the first $250,000 of such investments and 0.5% thereafter plus an incentive fee based upon improvements in cash available for distribution per share (as defined). Advisory fees excluding incentive fees earned for the years ended 2000, 1999 and 1998 were $11,851, $10,949 and $8,301, respectively. Incentive advisory fees are paid in restricted common shares based on a formula. The Company accrued $762, $237 and $846 in incentive fees during 2000, 1999 and 1998, respectively. The Company issued 12,869 and 32,904 restricted common shares in satisfaction of the 1999 and 1998 incentive fees, respectively. As of December 31, 2000, RMR and its affiliates owned 369,257 shares of HPT. In January 2001, the Company issued 33,828 restricted common shares in satisfaction of the 2000 incentive fee. RMR is owned by Gerard M. Martin and Barry M. Portnoy, who also serve as Managing Trustees of the Company. 7. Concentration The Company's assets are income producing lodging related real estate located throughout the United States. Each of the Company's eleven lessees at December 31, 2000, was a subsidiary of a public company.
December 31, Annual Total Lessee is a Number of 2000 % of Minimum % of Rent In % of Subsidiary of: Properties Investment Total Rent Total 2000(1) Total - -------------- ---------- ---------- ----- ---- ----- ------- ----- Host Marriott Corp. 53 $512,025 22% $51,202 21% $54,305 23% Host Marriott Corp. 18 175,836 8% 17,584 7% 18,030 8% Marriott International, Inc. 17 203,643 9% 21,322 9% 21,342 9% Marriott International, Inc. 14 148,812 6% 14,881 6% 15,000 6% Crestline Capital Corp. 17 218,815 9% 22,552 9% 18,279 8% Wyndham International, Inc. 15 240,000 10% 25,000 11% 25,379 11% Wyndham International, Inc. 12 182,570 8% 18,325 8% 18,256 8% Security Capital Group 18 145,000 6% 15,960 7% 16,095 7% Candlewood Hotel Company 17 142,400 6% 14,253 6% 13,529 6% Candlewood Hotel Company 17 118,500 5% 12,081 5% 11,630 5% Prime Hospitality Corp. 24 243,350 11% 25,575 11% 22,532 (2) 9% -- ----------- ----- --------- ----- -------- ------ 222 $2,330,951 100% $238,735 100% $234,377 100% (1) Includes minimum rent and percentage rent from the later of January 1, 2000, or the date of purchase through December 31, 2000. (2) Includes rents of $11,829 paid by ShoLodge, Inc. as predecessor lessee to Prime.
At December 31, 2000, HPT's 222 hotels contained 30,039 rooms and were located in 36 states, with between 5% and 10% of its hotels, by investment, in each of California, Texas, Virginia, Georgia, Florida, Arizona and North Carolina. 8. Pro Forma Information (Unaudited) The Company completed the acquisition of 12 and 40 hotels in 2000 and 1999, respectively. The Company completed debt offerings totaling $50,000 in 2000. In 1999 the Company completed offerings of 10,812,400 common shares and 3,000,000 preferred shares. If these transactions occurred on January 1, 1999, unaudited pro forma 2000 revenues, net income available for common shareholders and net income available for common shareholders per share would have been $277,459, $130,051 and $2.30, respectively, and the unaudited pro forma 1999 revenues, net income and net income per share would have been $273,258, $128,985 and $2.28, respectively. F-9 HOSPITALITY PROPERTIES TRUST NOTES TO CONSOLIDATED FINANCIAL STATEMENTS - (Continued) (dollar amounts in thousands, except per share amounts) In the opinion of management, all adjustments necessary to reflect the effects of the transactions discussed above have been reflected in the foregoing pro forma data. However, the unaudited pro forma data is not necessarily indicative of what the actual consolidated results of operations for the Company would have been for the years indicated, nor does it purport to represent the results of operations for the Company for future periods. 9. Selected Quarterly Financial Data (Unaudited) The following is a summary of the unaudited quarterly results of operations of the Company for 2000 and 1999:
2000 ---------------------------------------------------------- First Second Third Fourth Quarter Quarter Quarter Quarter Revenues(1)............................................ $62,177 $63,639 $65,824 $71,383 Net income available for common shareholders........... 27,753 28,524 28,659 34,211 Net income available for common shareholders per share(2)........................................... .49 .51 .51 .61 Distributions per share(3)............................. .69 .69 .70 .70 1999 ---------------------------------------------------------- First Second Third Fourth Quarter Quarter Quarter Quarter Revenues............................................... $53,273 $58,991 $62,343 $62,611 Net income available for common shareholders........... 22,896 26,066 28,624 29,237 Net income available for common shareholders per share(2)........................................... .50 .51 .51 .52 Distributions per share(3)............................. .68 .69 .69 .69 (1) During December 1999, the Securities and Exchange Commission released Staff Accounting Bulletin No. 101 ("SAB 101"). SAB 101 had no impact on the Company's annual results of operations. SAB 101 requires the Company to defer recognition of certain percentage rental income from the first, second and third quarters to the fourth quarter within a year. SAB 101 has been applied beginning January 1, 2000, without restatement of prior periods. (2) The sum of per common share amounts for the four quarters differs from annual per share amounts due to the required method of computing weighted average number of shares in interim periods and rounding. (3) Amounts represent distributions declared with respect to the periods shown.
F-10 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS ON SCHEDULE To the Trustees and Shareholders of Hospitality Properties Trust: We have audited in accordance with auditing standards generally accepted in the United States the consolidated financial statements of Hospitality Properties Trust included in this Form 10-K and have issued our report thereon dated January 12, 2001. Our audit was made for the purpose of forming an opinion on those statements taken as a whole. The schedule and related notes on pages F-12 and F-13 are the responsibility of Hospitality Properties Trust's management and are presented for the purpose of complying with the Securities and Exchange Commission's rules and are not part of the basic financial statements. This schedule has been subjected to the auditing procedures applied in the audit of the basic financial statements and, in our opinion, fairly states in all material respects the financial data required to be set forth therein in relation to the basic financial statements taken as a whole. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Vienna, Virginia January 12, 2001 F-11
HOSPITALITY PROPERTIES TRUST SCHEDULE III - REAL ESTATE AND ACCUMULATED DEPRECIATION DECEMBER 31, 2000 (dollars in millions) --------------------- -------------- ------------------------------ Costs Capitalized Gross Amount Initial Subsequent to at which Carried Cost to Company Acquisition at Close of Period --------------------- -------------- ------------------------------ Buildings & Buildings & Encumbrances Land Improvements Improvements Land Improvements Total 69 Courtyards $-- $110 $532 $9 $110 $541 $651 34 Candlewood Hotels -- 25 213 -- 25 213 238 36 Residence Inns -- 66 302 3 66 305 371 24 AmeriSuites -- 25 194 -- 25 194 219 18 Homestead Village -- 28 106 -- 28 106 134 15 Summerfield Suites -- 23 196 -- 23 196 219 12 Wyndham Hotels -- 16 154 1 16 155 171 2 Marriott Full Service -- 8 50 -- 8 50 58 12 TownePlace Suites and SpringHill Suites -- 18 78 -- 18 78 96 -- ---- -------- ----- ------ -------- ------ Total (222 hotels) $-- $319 $1,825 $13 $319 $1,838 $2,157 === ==== ====== ==== ==== ====== ====== ------------- ------------------- -------------------- -------------------- Life on which Depreciation in Latest Income Accumulated Date of Date Statement is Depreciation Construction Acquired Computed ------------- ------------------- -------------------- -------------------- 69 Courtyards $(60) 1987 through 2000 1995 through 2000 15 - 40 Years 34 Candlewood Hotels (15) 1996 through 1998 1997 through 2000 15 - 40 Years 36 Residence Inns (28) 1989 through 2000 1996 through 2000 15 - 40 Years 24 AmeriSuites (12) 1992 through 2000 1997 through 2000 15 - 40 Years 18 Homestead Village (6) 1996 through 1998 1999 15 - 40 Years 15 Summerfield Suites (15) 1989 through 1993 1998 15 - 40 Years 12 Wyndham Hotels (17) 1987 through 1990 1996 through 1997 15 - 40 Years 2 Marriott Full Service (4) 1972 through 1981 1998 15 - 40 Years 12 TownePlace Suites and SpringHill Suites (3) 1997 through 2000 1998 through 2000 15 - 40 Years ------ Total (222 hotels) $(160) ======
F-12 HOSPITALITY PROPERTIES TRUST NOTES TO SCHEDULE III DECEMBER 31, 2000 (dollars in thousands) (A) The change in accumulated depreciation for the period from January 1, 1998, to December 31, 2000, is as follows: 2000 1999 1998 ---- ---- ---- Balance at beginning of period $112,321 $ 68,289 $ 35,942 Additions:depreciation expense 47,546 44,032 32,347 -------- -------- -------- Balance at close of period $159,867 $112,321 $ 68,289 ======== ======== ======== (B) The change in total cost of properties for the period from January 1, 1997, to December 31, 2000, is as follows: 2000 1999 1998 ---- ---- ---- Balance at beginning of period $2,035,934 $1,698,457 $1,144,973 Additions: hotel acquisitions and capital expenditures 121,173 337,477 553,484 ---------- ---------- ---------- Balance at close of period $2,157,107 $2,035,934 $1,698,457 ========== ========== ========== (C) The net tax basis for federal income tax purposes of the Company's real estate properties was $1,996,937 on December 31, 2000. F-13 Introduction to Supplementary Financial Statements of HMH HPT Courtyard LLC HMH HPT Courtyard LLC is the lessee of 22% of Hospitality Properties Trust's investments, at cost. HMH HPT Courtyard LLC is a subsidiary of Host Marriott Corporation and is not owned by Hospitality Properties Trust. The following financial statements of HMH HPT Courtyard LLC are presented to comply with applicable accounting regulations of the Securities and Exchange Commission and were prepared by HMH HPT Courtyard LLC's management. F-14 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To HMH HPT Courtyard LLC: We have audited the accompanying balance sheets of HMH HPT Courtyard LLC as of December 31, 2000 and 1999, and the related statements of operations, shareholder's and member's equity and cash flows for the fiscal years ended December 31, 2000 and 1999, and January 2, 1999. These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of HMH HPT Courtyard LLC, as of December 31, 2000 and 1999, and the results of its operations and its cash flows for the fiscal years ended December 31, 2000 and 1999, and January 2, 1999 in conformity with accounting principles generally accepted in the United States. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Vienna, Virginia March 28, 2001 F-15 HMH HPT COURTYARD LLC BALANCE SHEETS December 31, 2000 and December 31, 1999 (in thousands) 2000 1999 ---- ---- ASSETS Rent receivable ...................................... $ 3,700 $ 3,658 Due from Hospitality Properties Trust ................ -- 1,192 Security deposit ..................................... 50,540 50,540 Note receivable from CCMH Courtyard I LLC ............ 5,100 5,100 Restricted cash ...................................... 8,780 7,331 ------- ------- Total assets .................................. $68,120 $67,821 ======= ======= LIABILITIES AND MEMBER'S EQUITY Due to Host Marriott, L.P. ........................... $ 9,232 $ 9,918 Due to Hospitality Properties Trust .................. 863 879 Due to CCMH Courtyard I LLC .......................... 2,006 1,959 Deferred gain ........................................ 28,039 30,916 ------- ------- Total liabilities ............................. 40,140 43,672 ------- ------- Member's equity ...................................... 27,980 24,149 ------- ------- Total liabilities and member's equity ......... $68,120 $67,821 ======= ======= See Notes to Financial Statements. F-16
HMH HPT COURTYARD LLC STATEMENTS OF OPERATIONS For the Fiscal Years Ended December 31, 2000, December 31, 1999 and January 2, 1999 (in thousands) 2000 1999 1998 --------- --------- --------- REVENUES (Note 1): Rental income ..................................... $ 62,632 $ 60,463 $ -- Hotel sales ....................................... -- -- 224,305 Interest income ................................... 416 326 -- Amortization of deferred gain ..................... 2,877 2,877 2,877 --------- --------- --------- Total revenues .............................. 65,925 63,666 227,182 EXPENSES: Hotel expenses .................................... -- -- 109,547 Rent expense ...................................... 55,366 53,586 52,784 FF&E contribution expense ......................... -- -- 11,216 Base and incentive management fees paid to Marriott International, Inc. .............................. -- -- 26,348 Property taxes .................................... -- -- 7,842 Corporate expenses ................................ 2,203 1,933 1,947 Other expenses .................................... 100 23 3,591 --------- --------- --------- Total expenses .............................. 57,669 55,542 213,275 --------- --------- --------- INCOME BEFORE INCOME TAXES ............................... 8,256 8,124 13,907 Provision for income taxes ............................... -- -- (5,563) --------- --------- --------- NET INCOME ............................................... $ 8,256 $ 8,124 $ 8,344 ========= ========= =========
See Notes to Financial Statements. F-17
HMH HPT COURTYARD LLC STATEMENTS OF SHAREHOLDER'S AND MEMBER'S EQUITY For the Fiscal Years Ended December 31, 2000, December 31, 1999 and January 2, 1999 (in thousands) Additional Common Paid-In Retained Member's Stock Capital Earnings/(Deficit) Equity ----- ------- ------------------ ------ Balance at January 2, 1998 ................. $ -- $ 15,295 $ 1,020 $ -- Dividend to Host Marriott .................. -- -- (5,467) -- Net income ................................. -- -- 8,344 -- Balance contributed to HMH HPT Courtyard LLC (See Note 1) ........................... -- (15,295) (3,897) 19,192 ---------- -------- -------- -------- Balance at December 31, 1998 ............... -- -- -- 19,192 Dividend to Host Marriott .................. -- -- -- (3,167) Net income ................................. -- -- -- 8,124 ---------- -------- -------- -------- Balance at December 31, 1999 ............... -- -- -- 24,149 Dividend to Host Marriott .................. -- -- -- (4,425) Net income ................................. -- -- -- 8,256 ---------- -------- -------- -------- Balance at December 31, 2000 ............... $ -- $ -- $ -- $ 27,980 ========== ======== ======== ========
See Notes to Financial Statements. F-18
HMH HPT COURTYARD LLC STATEMENTS OF CASH FLOWS Fiscal Years Ended December 31, 2000, December 31, 1999 and January 2, 1999 (in thousands) 2000 1999 1998 --------- -------- -------- OPERATING ACTIVITIES: Net income ..................................................... $ 8,256 $ 8,124 $ 8,344 Adjustments to reconcile net income to cash provided by operating activities: Amortization of deferred gain .................................. (2,877) (2,877) (2,877) Changes in operating accounts: Increase in rent receivable ................................ (42) (3,658) -- Decrease (increase) in due from Hospitality Properties Trust 1,192 (1,192) -- Increase in restricted cash ................................ (1,449) (7,331) -- Decrease (increase) in due from Marriott International, Inc. ...................................... -- 3,244 (11) (Decrease) increase in due to Host Marriott, L.P. .......... (686) 4,019 11 (Decrease) increase in due to Hospitality Properties Trust . (16) 879 -- Increase in due to CCMH Courtyard I LLC .................... 47 1,959 -- ------- ------- ------- Cash provided by operations ................................ 4,425 3,167 5,467 ------- ------- ------- FINANCING ACTIVITIES: Dividend to Host Marriott ...................................... (4,425) (3,167) (5,467) ------- ------- ------- NET CHANGE IN CASH AND CASH EQUIVALENTS ............................. -- -- -- CASH AND CASH EQUIVALENTS, beginning of year ........................ -- -- -- ------- ------- ------- CASH AND CASH EQUIVALENTS, end of year .............................. $ -- $ -- $ -- ======= ======= =======
See Notes to Financial Statements. F-19 HMH HPT COURTYARD LLC NOTES TO FINANCIAL STATEMENTS NOTE 1. SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES Basis of Presentation HMH HPT Courtyard, Inc. was incorporated in Delaware on February 7, 1995 as a wholly-owned indirect subsidiary of Host Marriott Corporation. HMH HPT Courtyard, Inc. had no operations prior to March 24, 1995 (the "Commencement Date"). In connection with the REIT Conversion discussed below, HMH HPT Courtyard, Inc. was merged into HMH HPT Courtyard LLC on December 23, 1998 (collectively the activities of HMH HPT Courtyard, Inc. and HMH HPT Courtyard LLC are referred to as the "Company"). On the Commencement Date, affiliates of Host Marriott Corporation ("Host Marriott" or the "Sellers") sold 21 Courtyard properties to Hospitality Properties Trust ("HPT"). On August 22, 1995, HPT purchased an additional 16 Courtyard properties from the Sellers. On March 22, 1996 and April 4, 1996, a total of 16 additional Courtyard properties were purchased by HPT for a total of 53 Courtyard hotels (the "Hotels"). The Sellers contributed the assets and liabilities related to the operations of such properties to the Company, including working capital advances to the manager, prepaid rent under leasing arrangements and rights to other assets as described in Note 2. Such assets have been accounted for at their historical cost. On April 17, 1998, Host Marriott announced that its Board of Directors authorized Host Marriott to reorganize its business operations to qualify as a real estate investment trust ("REIT") to become effective as of January 1, 1999 (the "REIT Conversion"). On December 29, 1998, Host Marriott announced that it had completed substantially all the steps necessary to complete the REIT Conversion and expected to qualify as a REIT under the applicable Federal income tax laws beginning January 1, 1999. Subsequent to the REIT Conversion, Host Marriott is referred to as Host REIT. In connection with the REIT Conversion, Host Marriott contributed substantially all of its hotel assets to a newly-formed partnership, Host Marriott, LP ("Host LP"). In connection with the REIT Conversion, the following steps occurred: 1) in December 1998, HMH HPT Courtyard LLC was formed as a wholly owned subsidiary of Host Marriott Hospitality, Inc. ("Hospitality") a then wholly owned subsidiary of Host Marriott; 2) on December 23, 1998, HMH HPT Courtyard, Inc. merged into HMH HPT Courtyard LLC and HMH HPT Courtyard, Inc. ceased to exist; and 3) on December 24, 1998, Hospitality contributed its LLC interest in the Company to Host LP, such that the Company is wholly owned by Host LP. As of December 31, 2000, Host REIT owns 78% of the outstanding limited partner units of Host LP and unaffiliated partners own the remaining 22%. The merger of HMH HPT Courtyard, Inc. and HMH HPT Courtyard LLC was accounted for as a reorganization of affiliated entities and the assets and liabilities of HMH HPT Courtyard, Inc. were carried over at their historical cost. Prior to January 1, 2001, as REITs were not permitted to derive revenues directly from the operations of hotels, the Company subleased its hotels and assigned its interest in the management agreements to subsidiaries of Crestline Capital Corporation ("Crestline"). See Notes 2 and 5. Use of Estimates The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Fiscal Year End Change The U.S. Internal Revenue Code of 1986, as amended, requires REITs to file their U.S. income tax return on a calendar year basis. Accordingly in 1998, the Company changed its fiscal year-end to December 31 for both F-20 HMH HPT COURTYARD LLC NOTES TO FINANCIAL STATEMENTS financial and tax reporting requirements. Previously, the Company's fiscal year ended on the Friday nearest to December 31. Revenues 2000 and 1999 revenues primarily represent sublease rental income from Crestline and are not comparable to 1998 hotel revenues which reflect gross sales generated by the hotel properties. The rent due under the sublease is the greater of base rent or percentage rent, as defined. Sublease percentage rent applicable to room, food and beverage and other types of hotel revenue varies by sublease and is calculated by multiplying fixed percentages by the total amounts of such revenues over specified threshold amounts. Both the sublease minimum rent and the revenue thresholds used in computing sublease percentage rents are subject to annual adjustments based on increases in the United States Consumer Price Index and the Labor Index, as defined. Application of New Accounting Standards On December 3, 1999 the Securities and Exchange Commission staff issued Staff Accounting Bulletin (SAB) No. 101, which codified the staff's position on revenue recognition. The Company retroactively changed its method of accounting for contingent sublease rental revenues to conform to SAB No. 101. As a result, base rent is recognized as it is earned according to the lease provisions. Percentage rent is recorded as deferred revenue on the balance sheet until the applicable hotel revenues exceed the threshold amounts. The Company has adopted SAB No. 101 with retroactive effect beginning January 1, 1999. Corporate Expenses The Company operates as a unit of Host LP, utilizing Host LP's employees, centralized system for cash management, insurance and administrative services. The Company has no employees. All cash received by the Company is commingled with Host LP's general corporate funds. Operating expenses and other cash requirements of the Company are paid by Host LP and charged directly or allocated to the Company. Certain general and administrative costs of Host LP are allocated to the Company, based on Host LP's specific identification of individual cost items when appropriate and otherwise based upon estimated levels of effort devoted by its general and administrative departments to individual entities. In the opinion of management, the methods for allocating corporate, general and administrative expenses and other direct costs are reasonable. Concentration of Credit Risk The Company's largest asset is the security deposit (see Note 3) which constitutes 74% of the Company's total assets as of December 31, 2000. The security deposit is not collateralized and is due from HPT at the termination of the leases, which are described in Note 2. Restricted Cash Restricted cash consists of cash and cash equivalents held in an interest-bearing deposit account pursuant to the Cash Management and Security Agreement between HPT, Crestline, and Host LP. Base and percentage rent under the Lease are collected and disbursed through the account, which is controlled by HPT. Deferred Gain Host Marriott contributed to the Company deferred gains relating to the sale of the 53 Courtyard properties to F-21 HMH HPT COURTYARD LLC NOTES TO FINANCIAL STATEMENTS HPT in 1995 and 1996. The Company is amortizing the deferred gain over the initial term of the Lease, as defined below. NOTE 2. LEASE COMMITMENTS Leases with HPT On the Commencement Date, the Company entered into a lease for 21 Courtyard properties. On August 22, 1995, the Company entered into a lease for an additional 16 Courtyard properties. On March 22, 1996 and April 4, 1996, the Company entered into a lease for an additional 16 Courtyard properties (collectively, the "Lease"). The initial term of the Lease expires in 2012. Thereafter, the Lease may be renewed for three consecutive twelve-year terms at the option of the Company. The Company is required to pay rents equal to aggregate minimum annual rent of $51,202,000 ("Base Rent"), and percentage rent equal to 5% of the excess of total hotel sales over base year total hotel sales ("Percentage Rent"). A pro rata portion of Base Rent is due and payable in advance on the first day of thirteen predetermined accounting periods. Percentage Rent is due and payable quarterly in arrears. The Company is also required to provide Marriott International (the "Manager") with working capital to meet the operating needs of the Hotels. Under the sublease agreements discussed below, Crestline is responsible for making the payments required under the Lease when due on behalf of HPT for real estate taxes and other taxes, assessments and similar charges arising from or related to the Hotels and their operation, utilities, premiums on required insurance coverage, rents due under ground and equipment leases and all amounts due under the terms of the management agreements described below. The Lease also requires the Company to escrow, or cause the Manager to escrow, an amount equal to 5% of the annual total hotel sales into an HPT-owned furniture, fixture and equipment reserve (the "FF&E Reserve"), which is available for the cost of required replacements and renovation. Any requirements for funds in excess of amounts in the FF&E Reserve shall be provided by HPT ("HPT Fundings") at the request of the Company. In the event of HPT Fundings, Base Rent shall be adjusted upward by an amount equal to 10% of HPT Fundings. The Company is required to maintain a minimum net worth equal to one year's base rent. For purposes of this covenant, net worth is defined as member's equity plus the deferred gain. Net worth, as defined, was $56,019,000 and $55,065,000, respectively, at December 31, 2000 and 1999. As of December 31, 2000, future minimum annual rental commitments for the Lease on the Hotels are as follows (in thousands). Lease ----- 2001.............................................. $ 51,202 2002.............................................. 51,202 2003.............................................. 51,202 2004.............................................. 51,202 2005.............................................. 51,202 Thereafter........................................ 358,420 ---------- Total minimum lease payments............... $ 614,430 ========== Ground Leases The land under eight of the Hotels is leased from third parties. The ground leases have remaining terms (including all renewal options) expiring between the years 2039 and 2067. The ground leases provide for rent based on specific percentages of certain sales subject to minimum amounts. The minimum rentals are adjusted at various anniversary dates throughout the lease terms, as defined in the agreements. As is discussed below, under the sublease agreements, Crestline makes ground lease rent payments. F-22 HMH HPT COURTYARD LLC NOTES TO FINANCIAL STATEMENTS Subleases with Crestline In connection with the REIT Conversion, the Company agreed to sublease the Hotels (the "Subleases") to separate indirect sublessee subsidiaries of Crestline ("Sublessee"), subject to the terms of the original Lease with HPT. Under the Subleases, the Company will have committed aggregate minimum subrental income of $614 million, which is equal to the Company's minimum lease payment obligation described above. The terms of each Sublease expire simultaneously with the expiration of the initial term of the Lease to which it relates and automatically renews for the corresponding renewal term under the Lease, unless either the Company (the "Sublessor") elects not to renew the Lease, or the Sublessee elects not to renew the Sublease at the expiration of the initial term provided, however, that neither party can elect to terminate fewer than all of the Subleases. Rent under the Subleases consists of minimum rent of $51.2 million in 2000 and an additional percentage rent which totaled $11.4 million in 2000. The percentage rent from Crestline is sufficient to cover the Percentage Rent due under the Lease with HPT, with any excess being retained by the Company. The rent payable under the Sublease is guaranteed by the Sublessee up to a maximum amount of $20 million. The Sublessee is responsible for paying all of the expenses of operating the applicable hotels, including all personnel costs, utility costs and general repair and maintenance of the hotels. Crestline is also responsible for paying real estate taxes, personal property taxes (to the extent the Company owns the personal property), casualty insurance on the structures, ground lease rent payments, required expenditures for FF&E (including maintaining the FF&E reserve, to the extent such is required by the applicable management agreement) and other capital expenditures. Crestline also is responsible for all fees payable to the applicable manager, including base and incentive management fees, chain services payments, and franchise or system fees, with respect to periods covered by the term of the sublease. The Company also remains liable under each management agreement. NOTE 3. SECURITY DEPOSIT HPT holds $50,540,000 as a security deposit for the obligations of the Company under the Leases (the "Security Deposit"). The Security Deposit is due upon termination of the Lease. NOTE 4. INCOME TAXES Host Marriott has contributed the Security Deposit and deferred gain to the Company without contributing their related tax attributes and has agreed that the Company will not be responsible for any tax liability or benefit associated with the Security Deposit or deferred gain. Accordingly, no deferred tax balances are reflected in the accompanying balance sheets. There is no difference between the basis of assets and liabilities for income tax and financial reporting purposes other than for the Security Deposit and the deferred gain. Subsequent to the REIT Conversion, Host REIT is generally no longer required to pay federal and state income taxes. For this reason, Host REIT no longer allocates a tax provision to the Company. For periods prior to the REIT Conversion, Host Marriott allocated a tax provision to the Company based on the separate return method. F-23 HMH HPT COURTYARD LLC NOTES TO FINANCIAL STATEMENTS The components of the Company's effective income tax rate follow: 1998 ----- Statutory Federal tax rate.................................... 35.0% State income tax, net of Federal tax benefit.................. 5.0 ----- 40.0% ===== The provision for income taxes consists of the following (in thousands): 1998 -------- Current - Federal............................................ $ 4,868 - State.............................................. 695 -------- $ 5,563 ======== NOTE 5. MANAGEMENT AGREEMENTS The Sellers' rights and obligations under management agreements (the "Agreements") with the Manager were transferred to HPT and then through the Leases to the Company. In connection with the REIT Conversion, Host Marriott assigned its rights and obligations under the Agreements to subsidiaries of Crestline. The Agreement has an initial term expiring in 2012 with options to extend the Agreement on all of the Hotels for up to 36 years. The Agreements provide that the Manager be paid a system fee equal to 3% of hotel sales, a base management fee of 2% of hotel sales ("Base Management Fee") and an incentive management fee equal to 50% of available cash flow, not to exceed 20% of operating profit, as defined ("Incentive Management Fee"). In addition, the Manager is reimbursed for each Hotel's pro rata share of the actual costs and expenses incurred in providing certain services on a central or regional basis to all Courtyard by Marriott hotels operated by the Manager. Base Rent is to be paid prior to payment of Base Management Fees and Incentive Management Fees. To the extent Base Management Fees are deferred, they must be paid in future periods. If available cash flow is insufficient to pay Incentive Management Fees, no Incentive Management Fees are earned by the Manager. As a result of the REIT Conversion, beginning in 1999 all fees payable under the Agreements are the obligation of the Sublessee. The obligations of the Lessees are guaranteed to a limited extent by Crestline. The Company remains obligated to the managers if the Sublessee fails to pay these fees (but would be entitled to reimbursement from the Sublessee under the terms of the Subleases). Pursuant to the terms of the Agreements, the Manager is required to furnish the hotels with certain services ("Chain Services") which are generally provided on a central or regional basis to all hotels in the Marriott International hotel system. Chain Services include central training, advertising and promotion, a national reservation system, computerized payroll and accounting services, and such additional services as needed which may be more efficiently performed on a centralized basis. Costs and expenses incurred in providing such services are allocated among all domestic hotels managed, owned or leased by Marriott International or its subsidiaries. In addition, the Hotels participate in Marriott Rewards and Marriott's Courtyard Club programs. The costs of these programs are charged to all hotels in the system. Crestline, as the Company's Sublessee, is obligated to provide the Manager with sufficient funds to cover the cost of (a) certain non-routine repairs and maintenance to the Hotels which are normally capitalized; and (b) replacements and renewals to the Hotel's and improvements. Under certain circumstances, the Company will be required to establish escrow accounts for such purposes under terms outlined in the Agreements. Pursuant to the terms of Agreements, the Company is required to provide Marriott International with funding for working capital to meet the operating needs of the hotels. Marriott International converts cash advanced by the Company into other forms of working capital consisting primarily of operating cash, inventories and trade receivables. Under the terms of the Agreements, Marriott International maintains possession of and sole control over the components of working capital. Upon termination of the Agreements, the working capital will be returned to the Company. In connection with the REIT Conversion, the Company sold the existing working capital to the Sublessee in return for a note receivable that bears interest at a rate of 5.12%. Interest accrued on the note is due simultaneously with each periodic rent payment. The principal amount of the note is payable upon termination of the Subleases. The Sublessee can return the working capital in satisfaction of the note. As of December 31, 2000, the note receivable from Crestline for working capital was $5.1 million. F-24 HMH HPT COURTYARD LLC NOTES TO FINANCIAL STATEMENTS NOTE 6. REVENUES AND HOTEL EXPENSES As of January 1, 1999, the Company subleases all of its hotels to subsidiaries of Crestline due to the REIT conversion. As a result of these subleases, in its statement of operations for the fiscal years ended December 31, 2000 and 1999, the Company no longer records property-level revenues and operating expenses; rather the Company recognizes rental income on the subleases and specified owner expenses, including rent due under the Lease. The following table presents the detail of hotel revenues and expenses (house profit) for 2000, 1999, and 1998 (in thousands). Amounts in 2000 and 1999 represent the revenues and hotel expenses of the Sublessee and are unaudited. 2000 1999 1998 ---- ---- ---- (unaudited)(unaudited) Revenues: Rooms ................................ $221,571 $209,408 $202,029 Food and beverage .................... 15,198 15,034 14,932 Other ................................ 7,954 8,378 7,344 -------- -------- -------- Total Revenues ................. 244,723 232,820 224,305 -------- -------- -------- Hotel expenses: Rooms (a) ............................ 48,603 45,950 42,535 Food and beverage (b) ................ 13,652 13,214 12,950 Other operating departments (c) ...... 1,499 1,839 2,089 General and administrative (d) ....... 25,152 24,461 24,239 Utilities (e) ........................ 7,901 7,494 7,751 Repairs, maintenance and accidents (f) 9,169 8,448 8,803 Marketing and sales (g) .............. 2,949 2,253 2,078 Chain services (h) ................... 9,571 9,473 9,102 -------- -------- -------- Total Hotel expenses ........... 118,496 113,132 109,547 -------- -------- -------- House Profit ................................ $126,227 $119,688 $114,758 ======== ======== ======== (a) Includes expenses for linen, cleaning supplies, laundry, guest supplies, reservations costs, travel agents' commissions, walked guest expenses and wages, benefits and bonuses for employees of the rooms department. (b) Includes costs of food and beverages sold, china, glass, silver, paper, and cleaning supplies and wages, benefits and bonuses for employees of the food and beverage department. (c) Includes expenses related to operating the telephone department. (d) Includes management and hourly wages, benefits and bonuses, credit and collection expenses, employee relations, guest relations, bad debt expenses, office supplies and miscellaneous other expenses. (e) Includes electricity, gas and water at the properties. (f) Includes cost of repairs and maintenance and the cost of accidents at the properties. (g) Includes management and hourly wages, benefits and bonuses, promotional expense and local advertising. (h) Includes charges from the Manager for Chain Services as allowable under the Agreements. F-25 Introduction to Supplementary Financial Statements of CCMH Courtyard I LLC CCMH Courtyard I LLC is the sublessee of the 22% of Hospitality Properties Trust's investments, at cost, which are leased to HMH HPT Courtyard LLC. The financial statements of HMH HPT Courtyard LLC are presented on the pages F-15 to F-25. CCMH Courtyard I LLC is a subsidiary of Crestline Capital Corporation and is not owned by Hospitality Properties Trust. The following financial statements of CCMH Courtyard I LLC are presented to comply with applicable accounting regulations of the Securities and Exchange Commission and were prepared by CCMH Courtyard I LLC's management. F-26 REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS To CCMH Courtyard I LLC: We have audited the accompanying balance sheets of CCMH Courtyard I LLC (a Delaware limited liability company) as of December 29, 2000 and December 31, 1999, and the related statements of operations, member's equity and cash flows for the fiscal years then ended. These financial statements are the responsibility of CCMH Courtyard I LLC's management. Our responsibility is to express an opinion on these financial statements based on our audits. We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion. In our opinion, the financial statements referred to above present fairly, in all material respects, the financial position of CCMH Courtyard I LLC as of December 29, 2000 and December 31, 1999 and the results of its operations and its cash flows for the fiscal years then ended in conformity with accounting principles generally accepted in the United States. /s/ Arthur Andersen LLP ARTHUR ANDERSEN LLP Vienna, Virginia February 23, 2001 F-27
CCMH COURTYARD I LLC BALANCE SHEETS AS OF DECEMBER 29, 2000 AND DECEMBER 31, 1999 (in thousands) ASSETS 2000 1999 ---- ---- Current assets Cash and cash equivalents ........................................... $ 635 $ 100 Due from Marriott International ..................................... 3,608 3,009 Note receivable from Crestline ...................................... 20,000 20,000 Other current assets ................................................ 8 -- ------- ------- 24,251 23,109 Hotel working capital .................................................... 5,100 5,100 Sublease deposit ......................................................... 1,948 1,948 ------- ------- Total assets ........................................................ $31,299 $30,157 ======= ======= LIABILITIES AND MEMBER'S EQUITY Current liabilities Lease payable to HMH ................................................ $ 3,869 $ 3,658 Other current liabilities ........................................... 142 3 ------- ------- 4,011 3,661 Hotel working capital notes payable to HMH ............................... 5,100 5,100 ------- ------- Total liabilities ................................................... 9,111 8,761 ------- ------- Member's equity .......................................................... 22,188 21,396 ------- ------- Total liabilities and member's equity ............................... $31,299 $30,157 ======= =======
See Notes to Financial Statements. F-28 CCMH COURTYARD I LLC STATEMENTS OF OPERATIONS Fiscal Years Ended December 29, 2000 and December 31, 1999 (in thousands) 2000 1999 ---- ---- REVENUES Rooms ............................................ $ 221,571 $ 209,408 Food and beverage ................................ 15,198 15,034 Other ............................................ 7,955 8,378 --------- --------- Total revenues ............................... 244,724 232,820 --------- --------- OPERATING COSTS AND EXPENSES Property-level operating costs and expenses Rooms ............................................ 48,603 45,950 Food and beverage ................................ 13,652 13,214 Other ............................................ 85,200 81,911 Other operating costs and expenses Lease expense paid to HMH ........................ 62,332 60,463 Management fees paid to Marriott International ... 26,827 23,935 --------- --------- Total operating costs and expenses ........... 236,614 225,473 --------- --------- OPERATING PROFIT BEFORE CORPORATE EXPENSES AND INTEREST........................................... 8,110 7,347 Corporate expenses .................................... (311) (342) Interest expense ...................................... (261) (261) Interest income ....................................... 142 80 --------- --------- INCOME BEFORE INCOME TAXES ............................ 7,680 6,824 Provision for income taxes ............................ (3,160) (2,798) --------- --------- NET INCOME ............................................ $ 4,520 $ 4,026 ========= ========= See Notes to Financial Statements. F-29 CCMH COURTYARD I LLC STATEMENTS OF MEMBER'S EQUITY Fiscal Years Ended December 29, 2000 and December 31, 1999 (in thousands) Total ----------- Balance, January 1, 1999...................................... $ 20,000 Dividend to Crestline...................................... (2,630) Net income................................................. 4,026 ----------- Balance, December 31, 1999.................................... 21,396 Dividend to Crestline...................................... (3,728) Net income................................................. 4,520 ----------- Balance, December 29, 2000.................................... $ 22,188 =========== See Notes to Financial Statements. F-30 CCMH COURTYARD I LLC STATEMENTS OF CASH FLOWS Fiscal Years Ended December 29, 2000 and December 31, 1999 (in thousands) 2000 1999 ---- ---- OPERATING ACTIVITIES Net income ........................................... $ 4,520 $ 4,026 Change in amounts due from Marriott International .... (599) (3,009) Change in lease payable to Host Marriott ............. 211 3,661 Change in other current assets and liabilities ....... 131 -- ------- ------- Cash provided by operating activities ........... 4,263 4,678 ------- ------- INVESTING ACTIVITIES Sublease deposit ..................................... -- (1,948) ------- ------- FINANCING ACTIVITIES Dividend to Crestline ................................ (3,728) (2,630) ------- ------- Increase in cash and cash equivalents ................ 535 100 Cash and cash equivalents, beginning of year ......... 100 -- ------- ------- Cash and cash equivalents, end of year ............... $ 635 $ 100 ======= ======= See Notes to Financial Statements. F-31 CCMH COURTYARD I LLC NOTES TO FINANCIAL STATEMENTS Note 1. Summary of Significant Accounting Policies Organization CCMH Courtyard I LLC (the "Company") was organized in the state of Delaware on December 28, 1998 as a wholly owned subsidiary of Crestline Capital Corporation ("Crestline"). On December 29, 1998, Crestline became a publicly traded company when Host Marriott Corporation ("Host Marriott") completed its plan of reorganizing its business operations by spinning-off Crestline to the shareholders of Host Marriott as part of a series of transactions pursuant to which Host Marriott converted into a real estate investment trust (the "Distribution"). On December 31, 1998, the Company entered into sublease agreements with HMH HPT Courtyard LLC ("HMH"), a wholly owned subsidiary of Host Marriott to sublease 53 of HMH's limited-service hotels with the existing management agreements of the subleased hotels assigned to the Company. As of December 29, 2000, the Company subleased 53 limited-service Courtyard hotels from HMH. The Company operates as a unit of Crestline, utilizing Crestline's employees, insurance and administrative services since the Company does not have any employees. Certain direct expenses are paid by Crestline and charged directly or allocated to the Company. Certain general and administrative costs of Crestline are allocated to the Company, using a variety of methods, principally Crestline's specific identification of individual costs and otherwise through allocations based upon estimated levels of effort devoted by general and administrative departments to the Company or relative measures of the size of the Company based on revenues. In the opinion of management, the methods for allocating general and administrative expenses and other direct costs are reasonable. Fiscal Year The Company's fiscal year ends on the Friday nearest December 31. Cash and Cash Equivalents The Company considers all highly liquid investments with a maturity of three months or less at date of purchase as cash equivalents. Revenues The Company records the gross property-level revenues generated by the hotels as revenues. Use of Estimates in the Preparation of Financial Statements The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities at the date of the financial statements and the reported amounts of revenues and expenses during the reporting period. Actual results could differ from those estimates. Note 2. Subleases HMH leases 53 limited-service hotels under the Courtyard by Marriott brand (the "HPT Leases") from Hospitality Properties Trust, Inc. ("HPT"). The HPT Leases have initial terms expiring through 2012 and are renewable at the option of HMH. In connection with the Distribution, the Company entered into sublease agreements with HMH for these limited-service hotels (the "Subleases"). The terms of the Subleases will expire simultaneously with the expiration of the initial term of the HPT Leases. If HMH elects to renew the HPT Leases, the Company can elect to also renew the Subleases for the corresponding renewal term. F-32 CCMH COURTYARD I LLC NOTES TO FINANCIAL STATEMENTS Each Sublease provides that generally all of the terms in the HPT Leases will apply to the Subleases. The HPT Leases require the lessee to pay rent equal to (i) a fixed minimum rent of $51,202,000 plus (ii) an additional rent equal to 5% of the excess of hotel revenues over a base year total of hotel revenues. In addition, the HPT Leases require the lessee to pay all repair and maintenance costs, impositions, utility charges, insurance premiums and all fees payable under the hotel management agreements. Pursuant to the Subleases, the Company is required to pay rent to HMH equal to the minimum rent due under the HPT Leases and an additional rent based on a percentage of revenues. Pursuant to the Subleases, the Company is required to maintain a minimum net worth of $20 million. The Company is also not permitted under its Subleases to pay dividends or advance funds to Crestline or its affiliates in excess of its cumulative net income. The Subleases also required the Company to provide a security deposit to HMH for $1,948,000, which shall be returned to the Company upon the termination of the Subleases. Recent Tax Legislation On December 17, 1999, the Work Incentives Improvement Act was passed which contained certain tax provisions related to REITs, commonly known as the REIT Modernization Act ("RMA"). Under the RMA, beginning on January 1, 2001, REITs could lease hotels to a "taxable subsidiary" if the hotel is operated and managed on behalf of such subsidiary by an independent third party. This law will enable Host Marriott, beginning in 2001, to lease its hotels to a taxable REIT subsidiary. Host Marriott may, at its discretion, elect to terminate all of Crestline's subleases beginning in 2001, upon payment of a termination fee equal to the fair market value of the Company's leasehold interests in the remaining term of the Subleases using a discount rate of five percent. If Host Marriott elects to terminate the Subleases, it would have to terminate all of Crestline's subleases. Future minimum annual rental commitments for all non-cancelable leases as of December 29, 2000 are as follows (in thousands): 2001.............................................. $ 51,202 2002.............................................. 51,202 2003.............................................. 51,202 2004.............................................. 51,202 2005.............................................. 51,202 Thereafter........................................ 358,420 ------------- Total minimum lease payments...................... $ 614,430 ============= Rent expense for the fiscal years 2000 and 1999 consisted of the following (in thousands): 2000 1999 ---- ---- Base rent.................................... $ 53,901 $ 53,457 Percentage rent.............................. 11,375 9,817 --------- --------- $ 65,276 $ 63,274 ========= ========= Note 3. Working Capital Notes Upon the commencement of the Subleases, the Company purchased the working capital of the subleased hotels from HMH for $5,100,000 with the purchase price evidenced by notes that bear interest at 5.12%. Interest on each note is due simultaneously with the rent payment of each Sublease. The principal amount of each note is due upon the termination of each Sublease. Upon termination of the Subleases, the Company will sell HMH the existing working capital at its current value. To the extent the working capital delivered to HMH is less than the value of the note, the Company will pay HMH the difference in cash. However, to the extent the working capital delivered to HMH exceeds the value of the note, HMH will pay the Company the difference in cash. As of December 29, 2000, the outstanding balance of the working capital notes was $5,100,000, which mature in 2010. Cash paid for interest expense in 2000 and 1999 totaled $261,000 and $241,000, respectively. F-33 CCMH COURTYARD I LLC NOTES TO FINANCIAL STATEMENTS Note 4. Management Agreements The hotels are managed by Marriott International, Inc. ("Marriott International") under long-term management agreements between HPT and Marriott International (the "Agreements"). HPT's rights and obligations under the Agreements were transferred to HMH through the HPT Leases. HMH's rights and obligations under the Agreements with Marriott International were assigned to the Company for the term of the Subleases. The Agreements have an initial term expiring in 2012 with an option to extend the Agreements on all of the hotels for up to 36 years. The Agreements provide that Marriott International be paid a system fee equal to 3% of hotel revenues, a base management fee of 2% of hotel revenues ("Base Management Fee") and an incentive management fee equal to 50% of available cash flow, not to exceed 20% of operating profit, as defined ("Incentive Management Fee"). In addition, Marriott International is reimbursed for each hotel's pro rata share of the actual costs and expenses incurred in providing certain services on a central or regional basis to all Courtyard by Marriott hotels operated by Marriott International. Base rent on the Subleases are paid prior to payment of Base Management Fees and Incentive Management Fees. To the extent Base Management Fees are so deferred, they must be paid in future periods. If available cash flow is insufficient to pay Incentive Management Fees, no Incentive Management Fees are earned by Marriott International. Pursuant to the terms of the Agreements, Marriott International is required to furnish the hotels with certain services ("Chain Services") which are generally provided on a central or regional basis to all hotels in the Marriott International hotel system. Chain Services include central training, advertising and promotion, a national reservation system, computerized payroll and accounting services, and such additional services as needed which may be more efficiently performed on a centralized basis. Costs and expenses incurred in providing such services are allocated among all domestic hotels managed, owned or leased by Marriott International or its subsidiaries. In addition, the hotels participate in Marriott Rewards and Marriott's Courtyard Club programs. The cost of these programs are charged to all hotels in the system. The Company is obligated to provide Marriott International with sufficient funds to cover the cost of (a) certain non-routine repairs and maintenance to the hotels which are normally capitalized; and (b) replacements and renewals to the hotels' property and improvements. To the extent the reserves for FF&E replacements are insufficient to meet the hotel's capital expenditure requirements, HPT is required to fund the shortfall. Note 5. Income Taxes The Company is included in the consolidated Federal income tax return of Crestline and its affiliates (the "Group"). Tax expense is allocated to the Company as a member of the Group based upon the relative contribution to the Group's consolidated taxable income/loss and changes in temporary differences. This allocation method results in Federal and state tax expense allocated for the period presented that is substantially equal to the expense that would have been recognized if the Company had filed separate tax returns. As of December 29, 2000 and December 31, 1999, the Company had no deferred tax assets or liabilities. Note 6. Note Receivable from Crestline The Company was capitalized with a $20 million note receivable from Crestline. The note is non-interest bearing and is payable upon demand. Fair value approximates book value at December 29, 2000 and December 31, 1999. F-34 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. HOSPITALITY PROPERTIES TRUST By: /s/ John G. Murray John G. Murray President and Chief Operating Officer Dated: March 30, 2001 Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons, or by their attorney-in-fact, in the capacities and on the dates indicated. Signature Title Date /s/ John G. Murray President and March 30, 2001 John G. Murray Chief Operating Officer /s/ Thomas M. O'Brien Treasurer and Chief March 30, 2001 Thomas M. O'Brien Financial Officer /s/ John L. Harrington Trustee March 30, 2001 John L. Harrington /s/ Arthur G. Koumantzelis Trustee March 30, 2001 Arthur G. Koumantzelis /s/ William J. Sheehan Trustee March 30, 2001 William J. Sheehan /s/ Gerard M. Martin Trustee March 30, 2001 Gerard M. Martin /s/ Barry M. Portnoy Trustee March 30, 2001 Barry M. Portnoy EX-3.3 2 0002.txt EXHIBIT 3.3 HOSPITALITY PROPERTIES TRUST ARTICLES SUPPLEMENTARY 9 1/2% SERIES A CUMULATIVE REDEEMABLE PREFERRED SHARES without par value HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust, having its principal office in Newton, Massachusetts (hereinafter called the "Trust"), hereby certifies to the State Department of Assessments and Taxation of Maryland that: FIRST: Pursuant to authority expressly vested in the Trustees by Section 5.1 of the Amended and Restated Declaration of Trust of the Trust, dated August 21, 1995, as amended (the "Declaration"), the Trustees have duly reclassified and designated 3,450,000 Preferred Shares of the Trust as 9 1/2% Series A Cumulative Redeemable Preferred Shares, without par value, of the Trust ("Series A Preferred Shares"). SECOND: The preferences, rights, voting powers, restrictions, limitations as to dividends and other distributions, qualifications and terms or conditions of redemption of the Series A Preferred Shares are as follows, which upon any restatement of the Declaration shall be made part of Article V of the Declaration, with any necessary or appropriate changes to the enumeration or lettering of sections or subsections hereof. Capitalized terms used in this ARTICLE SECOND which are defined in the Declaration and not otherwise defined herein are used herein as so defined in the Declaration. 9 1/2% Series A Cumulative Redeemable Preferred Shares, without par value 1. Designation and Number. A series of Preferred Shares, designated the 9 1/2% Series A Cumulative Redeemable Preferred Shares, without par value (the "Series A Preferred Shares"), is hereby established. The number of authorized Series A Preferred Shares is 3,450,000. 2. Relative Seniority. In respect of rights to receive dividends and to participate in distributions or payments in the event of any liquidation, dissolution or winding up of the Trust, the Series A Preferred Shares shall rank (i) senior to the Common Shares, the Junior Participating Preferred Shares and any other class or series of Shares of the Trust, the terms of which specifically provide that such class or series ranks, as to rights to receive dividends and to participate in distributions or payments in the event of any liquidation, dissolution or winding up of the Trust, junior to the Series A Preferred Shares (the Shares described in this clause (i) being, collectively, "Junior Shares"), (ii) on a parity with any other class or series of Shares of the Trust, the terms of which specifically provide that such class or series ranks, as to rights to receive dividends and to participate in distributions or payments in the event of any liquidation, dissolution or winding up of the Trust, on a parity with the Series A Preferred Shares, and (iii) junior to any class or series of Shares of the Trust, the terms of which specifically provide that such class or series ranks, as to rights to receive dividends and to participate in distributions or payments in the event of any liquidation, dissolution or winding up of the Trust, senior to the Series A Preferred Shares. For the avoidance of doubt, debt securities of the Trust which are convertible into or exchangeable for Shares of the Trust or any other debt securities of the Trust do not constitute a class or series of Shares for purposes of this Section 2. 3. Dividends and Distributions. (a) Subject to the preferential rights of the holders of any class or series of Shares of the Trust ranking senior to the Series A Preferred Shares as to dividends, the holders of the then outstanding Series A Preferred Shares shall be entitled to receive, when and as authorized by the Trustees, out of any funds legally available therefor, cumulative dividends at a rate of nine and one-half percent (9 1/2%) per annum of the Twenty-Five Dollars ($25.00) per share liquidation preference of the Series A Preferred Shares (equivalent to the annual rate of $2.375 per share). Such dividends shall accrue and be cumulative from (but excluding) April 12, 1999 (the "Original Issue Date") in the case of Series A Preferred Shares issued on or prior to May 12, 1999, and otherwise from (but excluding) the date of the original issuance thereof, and will be payable quarterly in arrears in cash on the last day of each March, June, September and December beginning on June 30, 1999 (each such day being hereinafter called a "Quarterly Dividend Date"); provided that if any Quarterly Dividend Date is not a Business Day (as hereinafter defined), then the dividend which would otherwise have been payable on such Quarterly Dividend Date may be paid on the next succeeding Business Day with the same force and effect as if paid on such Quarterly Dividend Date, and no interest or additional dividends or other sums shall accrue on the amount so payable from such Quarterly Dividend Date to such next succeeding Business Day. As used herein the term "Dividend Period" for Series A Preferred Shares means the period from but excluding the Original Issue Date or other date of the original issuance thereof, as applicable, and ending on and including the next following Quarterly Dividend Date, and each subsequent period from but excluding a Quarterly Dividend Date and ending on and including the next following Quarterly Dividend Date. The amount of any dividend payable for any full Dividend Period or portion thereof shall be computed on the basis of a 360-day year of twelve 30-day months (it being understood that the first Dividend Period is shorter than a full Dividend Period). Dividends shall be payable to holders of record as they appear in the share records of the Trust at the close of business on the applicable record date (the "Record Date"), which shall be a date designated by the Trustees for the payment of dividends that is not more than 60 nor less than 10 days prior to the applicable Quarterly Dividend Date. (b) Dividends on the Series A Preferred Shares shall accrue and be cumulative, whether or not the Trust has earnings, there are funds legally available for the payment of such dividends or such dividends have been declared. (c) If Series A Preferred Shares are outstanding, no full dividends shall be declared or paid or set apart for payment on any other class or series of Shares of the Trust ranking, as to dividends, on a parity with or junior to Series A Preferred Shares for any period, unless the full cumulative dividends on the Series A Preferred Shares have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past Dividend Periods. When dividends are not paid in full (or a sum sufficient for such full payment is not so set apart) upon the Series A Preferred Shares and the Shares of any other class or series -2- ranking on a parity as to dividends with the Series A Preferred Shares, all dividends declared upon Series A Preferred Shares and any such other class or series of Shares shall in all cases bear to each other the same ratio that accrued dividends per share on the Series A Preferred Shares and such other class or series of Shares (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods if such other class or series does not have a cumulative dividend) bear to each other. (d) Except as provided in Section 3(c) above, unless full cumulative dividends on the Series A Preferred Shares have been or contemporaneously are declared and paid or declared and a sum sufficient for the repayment thereof set apart for payment for all past Dividend Periods and the then current Dividend Period, no dividends (other than in Common Shares or other Junior Shares or options, warrants or rights to subscribe for or purchase Common Shares or other Junior Shares) shall be declared or paid or set apart for payment and no other distribution shall be declared or made upon the Common Shares or any other Shares ranking junior to the Series A Preferred Shares as to rights to receive dividends or to participate in distributions or payments in the event of any liquidation, dissolution or winding up of the Trust, nor shall any Common Shares or any other such Shares be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such Shares) by the Trust except (i) by conversion into or exchange for Common Shares or other Junior Shares, (ii) pursuant to pro rata offers to purchase or a concurrent redemption of all, or a pro rata portion of, the outstanding Series A Preferred Shares and any other class or series of Shares ranking on a parity with Series A Preferred Shares as to rights to receive dividends and to participate in distributions or payments in the event of any liquidation, dissolution or winding up of the Trust, (iii) by redemption, purchase or other acquisition of Common Shares made for purposes of an incentive, benefit or share purchase plan of the Trust or any of its subsidiaries for officers, Trustees or employees or others performing or providing similar services, (iv) by redemption, purchase or other acquisition of rights to purchase Junior Participating Preferred Shares pursuant to the Rights Agreement, dated as of May 30, 1997, between the Trust and State Street Bank and Trust Company, as rights agent, or pursuant to any replacement agreement therefor relating to such rights, each as in effect from time to time, or of any similar rights from time to time issued by the Trust in connection with a successor or supplemental shareholder rights protection plan adopted by the Trustees, and (v) for redemptions, purchases or other acquisitions by the Trust, whether pursuant to any provision of the Declaration or otherwise, for the purpose of preserving the Trust's status as a real estate investment trust (a "REIT") for Federal income tax purposes. (e) No interest, or sum of money in lieu thereof, shall be payable in respect of any dividend payment or payments on Series A Preferred Shares which may be in arrears, and the holders of Series A Preferred Shares are not be entitled to any dividends, whether payable in cash, securities or other property, in excess of the full cumulative dividends described in this Section 3. Except as otherwise expressly provided herein, the Series A Preferred Shares shall not be entitled to participate in the earnings or assets of the Trust. (f) Any dividend payment made on the Series A Preferred Shares shall be first credited against the earliest accrued but unpaid dividend due with respect to such Shares which remains payable. Any cash dividends paid in respect of Series A Preferred Shares, including any -3- portion thereof which the Trust elects to designate as "capital gain dividends" (as defined in Section 857 (or any successor provision) of the Internal Revenue Code) or as a return of capital, shall be credited to the cumulative dividends on the Series A Preferred Shares. (g) No dividends on the Series A Preferred Shares shall be authorized by the Trustees or be paid or set apart for payment by the Trust at such time as the terms and provisions of any agreement of the Trust, including any agreement relating to its indebtedness, directly or indirectly prohibit authorization, payment or setting apart for payment or provide that such authorization, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration, payment or setting apart for payment shall be restricted or prohibited by law. (h) The Trust shall remain entitled to receive and retain any interest or other earnings on any money set aside for the payment of dividends on Series A Preferred Shares and holders thereof shall have no claim to such interest or other earnings. Any funds for the payment of dividends on Series A Preferred Shares which have been set apart by the Trust and which remain unclaimed by the holders of the Series A Preferred Shares entitled thereto on the first anniversary of the applicable Quarterly Dividend Date, or other dividend payment date shall revert and be repaid to the general funds of the Trust, and thereafter the holders of the Series A Preferred Shares entitled to the funds which have reverted or been repaid to the Trust shall look only to the general funds of the Trust for payment, without interest or other earnings thereon. (i) "Business Day" shall mean any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions in New York, New York or Boston, Massachusetts are authorized or required by law, regulation or executive order to close. 4. Liquidation Rights. (a) Upon any voluntary or involuntary liquidation, dissolution or winding up of the Trust, then, before any distribution or payment shall be made to the holders of any Common Shares or any other Shares ranking junior to the Series A Preferred Shares as to rights to participate in distributions or payments in the event of any liquidation, dissolution or winding up of the Trust, but subject to the preferential rights of holders of any class or series of Shares ranking senior to the Series A Preferred Shares as to rights to participate in distributions or payments in the event of any liquidation, dissolution or winding up of the Trust, the holders of Series A Preferred Shares shall be entitled to receive, out of assets of the Trust legally available for distribution to shareholders, liquidating distributions in cash or property at its fair market value as determined by the Trustees in the amount of Twenty-Five Dollars ($25.00) per Series A Preferred Share, plus an amount equal to all dividends accrued and unpaid thereon. (b) After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series A Preferred Shares will have no right or claim to any of the remaining assets of the Trust. -4- (c) In the event that upon any voluntary or involuntary liquidation, dissolution or winding up of the Trust, the available assets of the Trust are insufficient to pay the full amount of the liquidating distributions on all outstanding Series A Preferred Shares and the full amount amounts payable as liquidating distributions on all Shares of other classes or series of Shares of the Trust ranking on a parity with the Series A Preferred Shares as to rights to participate in distributions or payments in the event of any liquidation, dissolution or winding up of the Trust, then the holders of the Series A Preferred Shares and all other such classes or series of Shares shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled. (d) For purposes of this Section 4, neither the sale, lease, transfer or conveyance of all or substantially all of the property or business of the Trust, nor the merger or consolidation of the Trust into or with any other entity or the merger or consolidation of any other entity into or with the Trust or a statutory share exchange by the Trust, shall be deemed to be a dissolution, liquidation or winding up of the Trust. (e) In determining whether a distribution (other than upon voluntary or involuntary liquidation), by dividend, redemption or other acquisition of Shares or otherwise, is permitted under Maryland law, amounts that would be needed, if the Trust were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of the holders of Series A Preferred Shares will not be added to the Trust's total liabilities. 5. Redemption by the Trust. (a) Optional Redemption. The Series A Preferred Shares are not redeemable prior to April 12, 2004, except as otherwise provided in Section 5(b) below. On and after April 12, 2004, the Trust may, at its option, redeem Series A Preferred Shares in whole or from time to time in part, for cash at a redemption price per share of Twenty-Five Dollars ($25.00), together with all accrued and unpaid dividends to the date fixed for redemption, except as otherwise provided in Section 5(c)(vi) below (the "Series A Redemption Price"), and without interest. Each date fixed for redemption of Series A Preferred Shares pursuant to this Section 5(a) or to Section 5(b) below is referred to in these provisions of the Series A Preferred Shares as a "Series A Redemption Date." The Series A Preferred Shares have no stated maturity and are not subject to any sinking fund or mandatory redemption. Any redemption of Series A Preferred Shares pursuant to this Section 5(a) shall be made in accordance with the applicable provisions of Section 5(c) below. (b) Special Optional Redemption. The Trust may, at its option, redeem at any time all or from time to time any Series A Preferred Shares which constitute Excess Series A Preferred Shares (as defined in Section 9 below) for cash at a redemption price per share equal to the Series A Redemption Price, subject, with respect to the portion of the Series A Redemption Price constituting accrued and unpaid dividends to the date fixed for redemption, to the provisions of the second paragraph of subsection (c) of Section 5.14 of the Declaration and to Section 5(c)(vi) below, and without interest. The Trust's right to redeem Excess Series A Preferred Shares shall be in addition to, and shall not limit, its rights with respect to such Series A Preferred Shares set forth in Section 9 below or in Section 5.14 of the Declaration. Any redemption of Series A Preferred Shares -5- pursuant to this Section 5(b) shall be made in accordance with the applicable provisions of Section 5(c) below. (c) Procedures and Terms for Redemption. (i) Notice of redemption will be mailed at least 30 days but not more than 60 days before the Series A Redemption Date to each holder of record of Series A Preferred Shares to be redeemed at the address shown on the share transfer books of the Trust; provided that if the Trust shall have reasonably concluded, based on advice of independent tax counsel experienced in such matters, that a redemption pursuant to Section 5(b) must be made on a date (the "Special Redemption Date") which is earlier than 30 days after the date of such mailing in order to preserve the status of the Trust as a REIT for Federal income tax purposes or to comply with Federal tax laws relating to the Trust's qualification as a REIT, then the Trust may give such shorter notice as is necessary to effect such redemption on the Special Redemption Date. Each notice of redemption shall state: (A) the applicable Series A Redemption Date; (B) the number of Series A Preferred Shares to be redeemed; (C) the applicable Series A Redemption Price; (D) the place or places where certificates for such Series A Preferred Shares are to be surrendered for payment of the Series A Redemption Price; and (E) that dividends on the Series A Preferred Shares to be redeemed will cease to accrue on such Series A Redemption Date. If fewer than all the Series A Preferred Shares are to be redeemed, the notice mailed to each such holder thereof shall also specify the number of Series A Preferred Shares to be redeemed from each such holder or the method for calculating that number. No failure to give such notice or any defect therein or in the mailing thereof shall affect the validity of the proceedings for the redemption of any Series A Preferred Shares except as to the holder to whom the Trust has failed to give notice or to whom notice was defective. (ii) If notice of redemption of Series A Preferred Shares has been mailed in accordance with Section 5(c)(i) above and if the funds necessary for such redemption have been set aside by the Trust in trust for the benefit of the holders the Series A Preferred Shares so called for redemption, subject to the provisions of Section 5(c)(v) below, then from and after the Series A Redemption Date specified in the notice dividends will cease to accumulate, and such Shares shall no longer be deemed to be outstanding and shall not have the status of Series A Preferred Shares and all rights of the holders thereof as Shareholders of the Trust (except the right to receive the Series A Redemption Price) shall terminate. (iii) Upon surrender, in accordance with the Trust's notice of redemption, of the certificates for any Series A Preferred Shares redeemed (properly endorsed or assigned for transfer and with applicable signature guarantees, if the Trust shall so require and the notice shall so state), the Series A Preferred Shares shall be redeemed by the Trust at the Series A Redemption Price. In case fewer than all the Series A Preferred Shares evidenced by any such certificate are redeemed, a new certificate or certificates shall be issued evidencing the unredeemed Series A Preferred Shares without cost to the holder thereof. -6- (iv) If fewer than all of the outstanding Series A Preferred Shares are to be redeemed, the number of Series A Preferred Shares to be redeemed will be determined by the Trust and such Shares may be redeemed pro rata from the holders of record of such Shares in proportion to the number of such Shares held by such holders (with adjustments to avoid redemption of fractional Shares), by lot or by any other equitable method determined by the Trust. (v) Any funds for the redemption of Series A Preferred Shares which have been set aside by the Trust pursuant to Section 5(c)(ii) above, shall be irrevocably set aside separate and apart from the Trust's other funds in trust for the pro rata benefit of the holders of the Series A Preferred Shares called for redemption, except that: (A) the Trust shall be entitled to receive any interest or other earnings, if any, earned on any money so set aside in trust, and the holders of any Shares redeemed shall have no claim to such interest or other earnings; and (B) any balance of monies deposited by the Trust and unclaimed by the holders of the Series A Preferred Shares entitled thereto at the expiration of one year from the applicable Series A Redemption Date shall be repaid, together with any interest or other earnings earned thereon, to the general funds of the Trust, and after any such repayment, the holders of the Shares entitled to the funds which have been repaid to the Trust shall look only to the general funds of the Trust for payment without interest or other earnings thereon. (vi) Anything in these provisions of the Series A Preferred Shares to the contrary notwithstanding, the holders of record of Series A Preferred Shares at the close of business on a Record Date will be entitled to receive the dividend payable with respect to such Shares on the corresponding Quarterly Dividend Date notwithstanding the redemption of such Shares after such Record Date and on or prior to such Quarterly Dividend Date or the Trust's default in the payment of the dividend due on such Quarterly Dividend Date, in which case the amount payable upon redemption of such Series A Preferred Shares will not include such dividend (and the full amount of the dividend payable for the applicable Dividend Period shall instead be paid on such Quarterly Dividend Date to the holders of record on such Record Date as aforesaid). Except as provided in this clause (vi) and except to the extent that accrued and unpaid dividends are payable as a part of the Series A Redemption Price pursuant to Section 5(a) or 5(b), the Trust will make no payment or allowance for unpaid dividends, regardless of whether or not in arrears, on Series A Preferred Shares called for redemption. (vii) Notwithstanding the foregoing, unless the full cumulative dividends on all Series A Preferred Shares shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past Dividend Periods and the then current Dividend Period, no Series A Preferred Shares shall be redeemed unless all outstanding Series A Preferred Shares are simultaneously redeemed; provided, however, that (i) the foregoing shall not prevent the redemption of Series A -7- Preferred Shares pursuant to Section 5(b) above or the purchase or acquisition of Series A Preferred Shares pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Series A Preferred Shares, and (ii) the foregoing shall not in any respect limit the terms and provisions of Section 5.14 of the Declaration or Section 9 hereof. In addition, unless the full cumulative dividends on all outstanding Shares of Series A Preferred Shares have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past Dividend Periods and the then current Dividend Period, the Trust shall not purchase or otherwise acquire directly or indirectly any Series A Preferred Shares (except by conversion into or exchange for Common Shares or other Junior Shares); provided, however, that (i) the foregoing shall not prevent the redemption of Series A Preferred Shares pursuant to Section 5(b) above or the purchase or acquisition of Series A Preferred Shares pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding Series A Preferred Shares, and (ii) the foregoing shall not in any respect limit the terms and provisions of Section 5.14 of the Declaration or Section 9 hereof. (viii) For the avoidance of doubt, the provisions of this Section 5 shall not limit any direct or indirect purchase or acquisition by the Trust of all or any Series A Preferred Shares on the open market (including in privately negotiated transactions), except as otherwise expressly provided in Section 5(c)(vii) above. 6. Voting Rights. Notwithstanding anything to the contrary contained in the Declaration, except as set forth below in this Section 6, the holders of the Series A Preferred Shares shall not be entitled to vote at any meeting of the shareholders for election of Trustees or for any other purpose or otherwise to participate in any action taken by the Trust or the shareholders thereof, or to receive notice of any meeting of shareholders (except for such notices as may be expressly required by law). (a) At any time dividends on the Series A Preferred Shares shall be in arrears for six or more quarterly periods, whether or not the quarterly periods are consecutive, the holders of Series A Preferred Shares (voting separately as a class with all other series of Preferred Shares of the Trust upon which like voting rights have been conferred and are exercisable) will be entitled to vote for the election of two additional Trustees of the Trust at the next annual meeting of shareholders and at each subsequent meeting (and the number of Trustees then constituting the Board of Trustees will automatically increase by two, if not already increased by two by reason of the election of Trustees by the holders of such Preferred Shares), until all dividends accumulated on Series A Preferred Shares for the past Dividend Periods and the then current Dividend Period shall have been fully paid or declared and a sum sufficient for the payment thereof set apart for payment. (i) Upon the full payment of all such dividends accumulated on Series A Preferred Shares for the past Dividend Periods and the then current Dividend Period or the declaration in full thereof and the Trust's setting aside a sum sufficient for the payment thereof, the right of the holders of Series A Preferred Shares to elect such two Trustees shall cease, and (unless there are one or more other series of Preferred Shares of the Trust upon which like voting rights have been conferred and are exercisable) the term of office of such -8- Trustees previously so elected shall automatically terminate and the authorized number of Trustees of the Trust will thereupon automatically return to the number of authorized Trustees otherwise in effect, but subject always to the same provisions for the reinstatement and divestment of the right to elect two additional Trustees in the case of any such future dividend arrearage. (ii) If at any time when the voting rights conferred upon the Series A Preferred Shares pursuant to this Section 6(a) are exercisable any vacancy in the office of a Trustee elected pursuant to this Section 6(a) shall occur, then such vacancy may be filled only by the written consent of the remaining such Trustee or by vote of the holders of record of the outstanding Series A Preferred Shares and any other series of Preferred Shares of the Trust upon which like voting rights have been conferred and are exercisable and which are entitled to vote as a class with the Series A Preferred Shares in the election of Trustees pursuant to this Section 6(a). (iii) Any Trustee elected or appointed pursuant to this Section 6(a) may be removed only by the holders of the outstanding Series A Preferred Shares and any other series of Preferred Shares of the Trust upon which like voting rights have been conferred and are exercisable and which are entitled to vote as a class with the Series A Preferred Shares in the election of Trustees pursuant to this Section 6(a), and may not be removed by the holders of the Common Shares. (iv) The term of any Trustees elected or appointed pursuant to this Section 6(a) shall be from the date of such election or appointment and their qualification until the next annual meeting of the Shareholders and until their successors are duly elected and qualify, except as otherwise provided above in this Section 6(a). (b) So long as any Series A Preferred Shares remain outstanding, the Trust shall not, without the affirmative vote or consent of the holders of at least two-thirds of the Series A Preferred Shares outstanding at the time, given in person or by proxy, either in writing or at a meeting (the holders of Series A Preferred Shares voting separately as a class), (i) authorize or create, or increase the authorized or issued amount of, any class or series of Shares ranking senior to the Series A Preferred Shares with respect to payment of dividends or the distribution of assets upon liquidation, dissolution or winding up of the Trust, or reclassify any authorized Shares of the Trust into any such Shares, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such Shares; or (ii) amend, alter or repeal the provisions of the Declaration or the terms of the Series A Preferred Shares, whether by merger, consolidation or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of the Series A Preferred Shares; provided, however, that any increase in the amount of authorized Preferred Shares, any issuance of or increase in the amount of Series A Preferred Shares or any creation or issuance of or increase in the amount of authorized shares of any class or series of Preferred Shares which rank on a parity with the Series A Preferred Shares with respect to payment of dividends or the distribution of assets upon liquidation, dissolution or winding up of the Trust or which are Junior Shares shall not be deemed to materially and adversely affect the rights, preferences, privileges or voting powers of the Series A Preferred Shares. -9- (c) The voting provisions set forth in clauses (a) and (b) above will not apply if, at or prior to the time when the act with respect to which a vote would otherwise be required shall be effected, all outstanding Series A Preferred Shares shall have been redeemed or called for redemption and sufficient funds shall have been deposited in trust pursuant to the provisions of Sections 5(c)(ii) and 5(c)(v) hereof to effect the redemption. (d) On each matter submitted to a vote of the holders of Series A Preferred Shares or on which the holders of Series A Preferred Shares are otherwise entitled to vote as provided herein, each Series A Preferred Share shall be entitled to one vote, except that when Shares of any other class or series of Preferred Shares of the Trust have the right to vote with the Series A Preferred Shares as a single class on any matter, the Series A Preferred Shares and the Shares of each such other class or series will have one vote for each Twenty-Five Dollars ($25.00) of liquidation preference. 7. Conversion. The Series A Preferred Shares are not convertible into or exchangeable for any other property or securities of the Trust. This provision will not prevent the Trust from offering to convert or exchange the Series A Preferred Shares. 8. Status of Redeemed and Reacquired Series A Preferred Shares. In the event any Series A Preferred Shares shall be redeemed pursuant to Section 5 hereof or otherwise reacquired by the Trust, the Shares so redeemed or reacquired shall become authorized but unissued Shares of Series A Preferred Shares, available for future issuance and reclassification by the Trust or, if so determined by the Trustees, may be retired and canceled by the Trust. 9. Restrictions on Transfer. (a) As a condition to the transfer (including, without limitation, any sale, transfer, gift, assignment, devise or other disposition of Series A Preferred Shares, whether voluntary or involuntary, whether beneficially or of record, and whether effected constructively, by operation of law or otherwise) and/or registration of transfer of any Series A Preferred Shares ("Excess Series A Preferred Shares") which could in the opinion of the Trustees result in (i) direct or indirect ownership (as defined in Section 5.14 of the Declaration) of Series A Preferred Shares representing more than 9.8% in number, value or voting power of the total Series A Preferred Shares outstanding becoming concentrated in the hands of one owner other than an Excepted Person (as such term is defined in the Declaration), (ii) the outstanding Series A Preferred Shares of the Trust being owned by fewer than one hundred (100) persons, or (iii) the Trust being "closely held" within the meaning of Section 856(h) of the Internal Revenue Code, -10- such potential owner (a "Proposed Transferee") shall file with the Trust the statement or affidavit described in Section 5.14(b) of the Declaration no later than the fifteenth (15th) day prior to any proposed transfer, registration of transfer or transaction which, if consummated, would have any of the results set forth above; provided, however, that the Trustees may waive such requirement of prior notice upon determination that such waiver is in the best interests of the Trust. Subject to Section 5.14(i) of the Declaration, the Trustees shall have the power and right (i) to refuse to transfer or issue Excess Series A Preferred Shares or share certificates to any Proposed Transferee whose acquisition of such Excess Series A Preferred Shares would, in the opinion of the Trustees, result in the direct or indirect beneficial ownership of any Excess Series A Preferred Shares by a Person other than an Excepted Person and (ii) to treat such Excess Series A Preferred Shares as having been transferred not to the Proposed Transferee but rather to a trustee for the benefit of one or more Charitable Beneficiaries (as defined in the Declaration) selected and otherwise as described in Section 5.14(c) of the Declaration. Any such trust shall be deemed to have been established by the holder of such Excess Series A Preferred Shares for the benefit of the applicable Charitable Beneficiary or Charitable Beneficiaries on the day prior to the date of the purported transfer to the Proposed Transferee, which purported transfer shall be void ab initio and the Proposed Transferee shall be deemed never to have acquired any interest in or with respect to the Excess Series A Preferred Shares purportedly transferred. (b) Any Excess Series A Preferred Shares shall automatically be deemed to constitute Excess Shares (within the meaning of the Declaration) and shall be treated in the manner prescribed for Excess Shares, including those set forth in Section 5.14(c) thereof. (c) Notwithstanding any other provision of the Declaration or hereof to the contrary, but subject to Section 5.14(i) of the Declaration, any purported acquisition of Series A Preferred Shares (whether such purported acquisition results from the direct or indirect acquisition or ownership (as defined for purposes of the Declaration) of Series A Preferred Shares) which would result in the disqualification of the Trust as a REIT shall be null and void. Any such Shares may be treated by the Trustees in the manner prescribed for Excess Series A Preferred Shares in these provisions of the Series A Preferred Shares and for Excess Shares in Section 5.14(c) of the Declaration. (d) The provisions of this Section 9 shall not limit the applicability of Section 5.14 of the Declaration to Series A Preferred Shares in accordance with the terms thereof, and the provisions of this Section 9 and of Section 5.14 of the Declaration shall not limit the right of the Trust to elect to redeem Excess Series A Preferred Shares pursuant to Section 5(b) hereof. Subject only to Section 5.14(i) of the Declaration, nothing contained in this Section 9 or in any other provision of the Series A Preferred Shares in these provisions of the Series A Preferred Shares shall limit the authority of the Trustees to take such other action as they deem necessary or advisable to protect the Trust and the interests of the Shareholders by preserving the Trust's status as a REIT. The provisions of subsections (f) through (i) of Section 5.14 of the Declaration shall be applicable to this Section 9 as though (i) the references therein to Section 5.14 of the Declaration referred instead to this Section 9 and (ii) the references therein to subsections of Section 5.14 of the Declaration referred to the comparable provisions of this Section 9. -11- 10. Severability. If any preference, right, voting power, restriction, limitation as to dividends, qualification, term or condition of redemption or other term of the Series A Preferred Shares is invalid, unlawful or incapable or being enforced by reason of any rule of law or public policy, then, to the extent permitted by law, all other preferences, rights, voting powers, restrictions, limitations as to dividends, qualifications, terms and conditions of redemption and other terms of the Series A Preferred Shares which can be given effect without the invalid, unlawful or unenforceable preference, right, voting power, restriction, limitation as to dividends, qualification, term or condition of redemption or other term of the Series A Preferred Shares shall remain in full force and effect and shall not be deemed dependent upon any invalid, unlawful or unenforceable preference, right, voting power, restriction, limitation as to dividends, qualification, term or condition of redemption or other term of the Series A Preferred Shares. THIRD: The Series A Preferred Shares have been classified and designated by the Board of Trustees under the authority contained in the Declaration. FOURTH: These Articles Supplementary have been approved by the Board of Trustees in the manner and by the vote required by law. FIFTH: The undersigned President of the Trust acknowledges these Articles Supplementary to be the trust act of the Trust and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that, to the best of his knowledge, information and belief, these matters and facts are true in all material respects and this statement is made under the penalties for perjury. IN WITNESS WHEREOF, HOSPITALITY PROPERTIES TRUST has caused these Articles Supplementary to be signed in its name and on its behalf by its President and witnessed by its Assistant Secretary on April 7, 1999. WITNESS: HOSPITALITY PROPERTIES TRUST /s/ Alexander A. Notopoulos, Jr. By: /s/ John G. Murray Alexander A. Notopoulos, Jr., John G. Murray, President Assistant Secretary -12- EX-3.4 3 0003.txt EXHIBIT 3.4 HOSPITALITY PROPERTIES TRUST ARTICLES SUPPLEMENTARY HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust (the "Trust"), hereby certifies to the State Department of Assessments and Taxation of Maryland, that: FIRST: Under a power contained in Title 3, Subtitle 8 of the Maryland General Corporation Law (the "MGCL"), as applicable to Maryland real estate investment trusts, the Trust, by resolution of its Board of Trustees (the "Board of Trustees") duly adopted at a meeting duly called and held on May 16, 2000, amended the Bylaws of the Trust (the "Bylaws") to provide that the Trust elects to be subject to Section 3-804(b) and (c) of the MGCL. SECOND: The Bylaws described above provide that, notwithstanding any other provision in the Declaration of Trust or the Bylaws to the contrary, the Trust elects to be subject to Section 3-804(b) and (c) of the MGCL, the repeal of which may be effected only by a subsequent amendment to the Bylaws adopted or approved by the Board of Trustees. THIRD: These Articles Supplementary have been approved by the Board of Trustees in the manner and by the vote required by law. FOURTH: The undersigned President of the Trust acknowledges these Articles Supplementary to be the trust act of the Trust and, as to all matters or facts required to be verified under oath, the undersigned President acknowledges that, to the best of his knowledge, information and belief, these matters and facts are true in all material respects and that this statement is made under the penalties of perjury. IN WITNESS WHEREOF, the Trust has caused these Articles Supplementary to be executed under seal in its name and on its behalf by its President and attested by its Assistant Secretary on this 16th day of May, 2000. ATTEST: HOSPITALITY PROPERTIES TRUST /s/ Jennifer B. Clark /s/ John G. Murray (SEAL) Jennifer B. Clark, John G. Murray, Assistant Secretary President EX-4.8 4 0004.txt EXHIBIT 4.8 SUPPLEMENTAL INDENTURE NO. 4 by and between HOSPITALITY PROPERTIES TRUST and STATE STREET BANK AND TRUST COMPANY as of July 14, 2000 SUPPLEMENTAL TO THE INDENTURE DATED AS OF FEBRUARY 25, 1998 ------------------------------------ HOSPITALITY PROPERTIES TRUST 9.125% Senior Notes due 2010 This SUPPLEMENTAL INDENTURE NO. 4 (this "Supplemental Indenture") made and entered into as of July 14, 2000 between HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust (the "Company"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company, as Trustee (the "Trustee"). WITNESSETH THAT: WHEREAS, the Company and the Trustee have executed and delivered an Indenture, dated as of February 25, 1998 (the "Indenture"), relating to the Company's issuance, from time to time, of various series of debt securities; and WHEREAS, the Company has determined to issue debt securities known as its 9.125% Senior Notes due 2010; and WHEREAS, the Indenture provides that certain terms and conditions for each series of debt securities issued by the Company thereunder may be set forth in an indenture supplemental to the Indenture; NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: ARTICLE 1 DEFINED TERMS Section 1.1 The following definitions supplement, and, to the extent inconsistent with, replace the definitions in Section 101 of the Indenture: "Acquired Debt" means Debt of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with the acquisition of assets from such Person, in each case, other than Debt incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Debt shall be deemed to be incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary. "Annual Debt Service" as of any date means the maximum amount which is expensed in any 12-month period for interest on Debt of the Company and its Subsidiaries. "Business Day" means any day other than a Saturday or Sunday or a day on which banking institutions in the City of New York or in the city in which the Corporate Trust Office of the Trustee is located, are required or authorized to close. "Capital Stock" means, with respect to any Person, any capital stock (including preferred stock), shares, interests, participation or other ownership interests (however designated) of such Person and any rights (other than debt securities convertible into or exchangeable for capital stock), warrants or options to purchase any thereof. "Consolidated Income Available for Debt Service" for any period means Earnings from Operations of the Company and its Subsidiaries plus amounts which have been deducted, and minus amounts which have been added, for the following (without duplication): (i) interest on Debt of the Company and its Subsidiaries, (ii) cash reserves made by lessees as required by the Company's leases for periodic replacement and refurbishment of the Company's assets, (iii) provision for taxes of the Company and its Subsidiaries based on income, (iv) amortization of debt discount and deferred financing costs, (v) provisions for gains and losses on properties and property depreciation and amortization, (vi) the effect of any noncash charge resulting from a change in accounting principles in determining Earnings from Operations for such period and (vii) amortization of deferred charges. "Debt" of the Company or any Subsidiary means, without duplication, any indebtedness of the Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed money or evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness for borrowed money secured by any Encumbrance existing on property owned by the Company or any Subsidiary, to the extent of the lesser of (x) the amount of indebtedness so secured and (y) the fair market value of the property subject to such Encumbrance, (iii) the reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued (other than letters of credit issued to provide credit enhancement or support with respect to other indebtedness of the Company or any Subsidiary otherwise reflected as Debt hereunder) or amounts representing the balance deferred and unpaid of the purchase price of any property or services, except any such balance that constitutes an accrued expense or trade payable, or all conditional sale obligations or obligations under any title retention agreement, (iv) the principal amount of all obligations of the Company or any Subsidiary with respect to redemption, repayment or other repurchase of any Disqualified Stock, or (v) any lease of property by the Company or any Subsidiary as lessee which is reflected on the Company's consolidated balance sheet as a capitalized lease in accordance with GAAP, to the extent, in the case of items of indebtedness under (i) through (iii) above, that any such items (other than letters of credit) would appear as a liability on the Company's consolidated balance sheet in accordance with GAAP, and also includes, to the extent not otherwise included, any obligation by the Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business), Debt of another Person (other than the Company or any Subsidiary) (it being understood that Debt shall be deemed to be incurred by the Company or any Subsidiary whenever the Company or such Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof). "Disqualified Stock" means, with respect to any Person, any Capital Stock of such Person which by the terms of such Capital Stock (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise (i) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than Capital Stock which is redeemable solely in exchange for common stock or shares), (ii) is convertible into or exchangeable or exercisable for Debt or Disqualified Stock, or (iii) is redeemable at the option of the holder thereof, in whole or in part (other than Capital Stock which is redeemable solely in exchange for common stock or shares), in each case on or prior to the stated maturity of the Notes. "Earnings from Operations" for any period means net earnings excluding gains and losses on sales of investments, extraordinary items and property valuation losses, as reflected in the 2 financial statements of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP. "Encumbrance" means any mortgage, lien, charge, pledge or security interest of any kind. "Make-Whole Amount" means, in connection with any optional redemption or accelerated payment of any Notes, the excess, if any, of (i) the aggregate present value as of the date of such redemption or accelerated payment of each dollar of principal being redeemed or paid and the amount of interest (exclusive of interest accrued to the date of redemption or accelerated payment) that would have been payable in respect of such dollar if such redemption or accelerated payment had not been made, determined by discounting, on a semiannual basis, such principal and interest at the Reinvestment Rate (determined on the third Business Day preceding the date such notice of redemption is given or declaration of acceleration is made) from the respective dates on which such principal and interest would have been payable if such redemption or accelerated payment had not been made, over (ii) the aggregate principal amount of the Notes being redeemed or paid. For purposes of this Supplemental Indenture and the Notes, references in the Indenture to the payment of the principal (and premium, if any) and interest on the Notes shall be deemed to include the payment of the Make-Whole Amount, if any, due upon redemption with respect to the Notes. "Notes" means the Company's 9.125% Senior Notes, due 2010, issued under this Supplemental Indenture and the Indenture, as amended or supplemented from time to time. "Reinvestment Rate" means a rate per annum equal to the sum of 0.50% (fifty one hundredths of one percent) plus the yield on treasury securities at constant maturity under the heading "Week Ending" published in the Statistical Release under the caption "Treasury Constant Maturities" for the maturity (rounded to the nearest month) corresponding to the remaining life to maturity, as of the payment date of the principal being redeemed or paid. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used. "Secured Debt" means Debt secured by any mortgage, lien, charge, pledge or security interest of any kind. "Statistical Release" means the statistical release designated "H.15(519)" or any successor publication which is published weekly by the Federal Reserve System and which establishes yields on actively traded United States government securities adjusted to constant maturities or, if such statistical release is not published at the time of any determination under this Supplemental Indenture, then any publicly available source of similar market data which shall be designated by the Company. "Subsidiary" means any corporation or other entity of which a majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests of which are owned, 3 directly or indirectly, by the Company or one or more other Subsidiaries of the Company. For the purposes of this definition, "voting equity securities" means equity securities having voting power for the election of directors, whether at all times or only so long as no senior class of security has such voting power by reason of any contingency. "Total Assets" as of any date means the sum of (i) the Undepreciated Real Estate Assets and (ii) all other assets of the Company and its Subsidiaries determined in accordance with GAAP (but excluding accounts receivable and intangibles). "Total Unencumbered Assets" means the sum of (i) those Undepreciated Real Estate Assets not subject to an Encumbrance for borrowed money and (ii) all other assets of the Company and its Subsidiaries not subject to an Encumbrance for borrowed money determined in accordance with GAAP (but excluding accounts receivable and intangibles). "Undepreciated Real Estate Assets" as of any date means the cost (original cost plus capital improvements) of real estate assets of the Company and its Subsidiaries on such date, before depreciation and amortization determined on a consolidated basis in accordance with GAAP. "Unsecured Debt" means Debt which is not secured by any of the properties of the Company or any Subsidiary. ARTICLE 2 TERMS OF THE NOTES Section 2.1 Pursuant to Section 301 of the Indenture, the Notes shall have the following terms and conditions: (a) Title; Limitation on Aggregate Principal Amount; Form of Notes. The Notes shall be Registered Securities under the Indenture and shall be known as the Company's "9.125% Senior Notes due 2010." The aggregate principal amount of Notes which may be authenticated and delivered under this Indenture Supplement shall not, except as permitted by the provisions of the Indenture, exceed $35,000,000, provided that the Company may, without the consent of the holders of the Notes, reopen this series and issue additional Notes under the Indenture and this Indenture Supplement in addition to the $35,000,000 of Notes authorized as of the date hereof. The Notes (together with the Trustee's certificate of authentication) shall be substantially in the form of Exhibit A hereto, which is hereby incorporated in and made a part of this Supplemental Indenture. The Notes will be issued in the form of one or more registered global security without coupons ("Global Notes") which will be deposited with, or on behalf of, The Depository Trust Company ("DTC"), and registered in the name of DTC's nominee, Cede & Co. Except under the circumstance described below, the Notes will not be issuable in definitive form. Unless and until it is exchanged in whole or in part for the individual notes represented thereby, a Global Note may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any nominee of DTC to a successor depositary or any nominee of such successor. 4 So long as DTC or its nominee is the registered owner of a Global Note, DTC or such nominee, as the case may be, will be considered the sole owner or holder of the Notes represented by such Global Note for all purposes under this Supplemental Indenture. Except as described below, owners of beneficial interest in Notes evidenced by a Global Note will not be entitled to have any of the individual Notes represented by such Global Note registered in their names, will not receive or be entitled to receive physical delivery of any such Notes in definitive form and will not be considered the owners or holders thereof under the Indenture or this Supplemental Indenture. If DTC is at any time unwilling, unable or ineligible to continue as depositary and a successor depositary is not appointed by the Company within 90 days, the Company will issue individual Notes in exchange for the Global Note or Global Notes representing such Notes. In addition, the Company may at any time and in its sole discretion, subject to certain limitations set forth in the Indenture, determine not to have any of such Notes represented by one or more Global Notes and, in such event, will issue individual Notes in exchange for the Global Note or Global Notes representing the Notes. Individual Notes so issued will be issued in denominations of $1,000 and integral multiples thereof. (b) Interest and Interest Rate. The Notes will bear interest at a rate of 9.125% per annum, from July 14, 2000 (or, in the case of Notes issued upon the reopening of this series of Notes, from the date designated by the Company in connection with such reopening) or from the immediately preceding Interest Payment Date to which interest has been paid or duly provided for, payable semi-annually in arrears on January 15 and July 15 of each year, commencing January 15, 2001 (each of which shall be an "Interest Payment Date"), to the Persons in whose names the Notes are registered in the Security Register at the close of business on the date 14 calendar days immediately preceding the applicable interest payment date (whether or not a Business Day), as the case may be, (each, a "Regular Record Date"). (c) Principal Repayment; Currency. The stated maturity of the Notes is July 15, 2010, provided, however, the Notes may be earlier redeemed at the option of the Company as provided in paragraph (d) below. The principal of each Note payable on its maturity date shall be paid against presentation and surrender thereof at the Corporate Trust Office of the Trustee, located initially at Two Avenue de Lafayette, Boston, Massachusetts 02111, in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public or private debts. The Company will not pay Additional Amounts (as defined in the Indenture) on the Notes. (d) Redemption at the Option of the Company; Acceleration. The Notes will be subject to redemption at any time at the option of the Company, in whole or in part, upon not less than 30 nor more than 60 days' notice to each Holder of Notes to be redeemed at its address appearing in the Security Register, at a price equal to the sum of (i) the principal amount of the Notes being redeemed, plus accrued and unpaid interest to but excluding the applicable Redemption Date and (ii) the Make-Whole Amount. Upon the acceleration of the Notes in accordance with Section 502 of the Indenture, the principal amount of the Notes, plus accrued and unpaid interest thereon and the Make-Whole Amount, shall become due and payable immediately. 5 (e) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Company shall be directed to it at 400 Centre Street, Newton, Massachusetts 02458, Attention: President; notices to the Trustee shall be directed to it at Two Avenue de Lafayette, Boston, Massachusetts 02111, Attention: Corporate Trust Department, Re: Hospitality Properties Trust 9.125% Senior Notes due 2010, or as to either party, at such other address as shall be designated by such party in a written notice to the other party. (f) Global Note Legend. Each Global Note shall bear the following legend on the face thereof: UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO 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. (g) Applicability of Discharge, Defeasance and Covenant Defeasance Provisions. The Discharge, Defeasance and Covenant Defeasance provisions in Article Fourteen of the Indenture will apply to the Notes. ARTICLE 3 ADDITIONAL COVENANTS Section 3.1 In addition to the covenants of the Company set forth in Article Ten of the Indenture, for the benefit of the holders of the Notes: (a) Limitations on Incurrence of Debt. (i) The Company will not, and will not permit any Subsidiary to, incur any Debt if, immediately after giving effect to the incurrence of such additional Debt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Debt of the Company and its Subsidiaries on a consolidated basis determined in accordance with GAAP is greater than 60% of the sum ("Adjusted Total Assets") of (without duplication) (i) the Total Assets of the Company and its Subsidiaries as of the end of the calendar quarter covered in the Company's Annual Report on Form 10-K, or the Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Securities and Exchange Commission (or, if such filing is not permitted under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), with the Trustee) prior to the incurrence of such additional Debt and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such 6 calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Debt. (ii) In addition to the foregoing limitations on the incurrence of Debt, the Company will not, and will not permit any Subsidiary to, incur any Secured Debt if, immediately after giving effect to the incurrence of such additional Secured Debt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Secured Debt of the Company and its Subsidiaries on a consolidated basis is greater than 40% of Adjusted Total Assets. (iii) In addition to the foregoing limitations on the incurrence of Debt, the Company will not, and will not permit any Subsidiary to, incur any Debt if the ratio of Consolidated Income Available for Debt Service to the Annual Debt Service for the four consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred shall have been less than 1.5x, on a pro forma basis after giving effect thereto and to the application of the proceeds therefrom, and calculated on the assumption that (i) such Debt and any other Debt incurred by the Company and its Subsidiaries since the first day of such four-quarter period and the application of the proceeds therefrom, including to refinance other Debt, had occurred at the beginning of such period; (ii) the repayment or retirement of any other Debt by the Company and its Subsidiaries since the first date of such four-quarter period had been repaid or retired at the beginning of such period (except that, in making such computation, the amount of Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period); (iii) in the case of Acquired Debt or Debt incurred in connection with any acquisition since the first day of such four-quarter period, the related acquisition had occurred as of the first day of such period with appropriate adjustments with respect to such acquisition being included in such pro forma calculation; and (iv) in the case of any acquisition or disposition by the Company or its Subsidiaries of any asset or group of assets since the first day of such four-quarter period, whether by merger, stock purchase or sale, or asset purchase or sale, such acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition or disposition being included in such pro forma calculation. If the Debt giving rise to the need to make the foregoing calculation or any other Debt incurred after the first day of the relevant four-quarter period bears interest at a floating rate then, for purposes of calculating the Annual Debt Service, the interest rate on such Debt shall be computed on a pro forma basis as if the average interest rate which would have been in effect during the entire such four-quarter period had been the applicable rate for the entire such period. (b) Maintenance of Total Unencumbered Assets. The Company and its Subsidiaries will maintain at all times Total Unencumbered Assets of not less than 200% of the aggregate outstanding principal amount of the Unsecured Debt of the Company and its Subsidiaries on a consolidated basis. ARTICLE 4 ADDITIONAL EVENTS OF DEFAULT Section 4.1 For purposes of this Supplemental Indenture and the Notes, in addition to the Events of Default set forth in Section 501 of the Indenture, it shall also constitute an "Event of 7 Default" if a default under any bond, debenture, note or other evidence of indebtedness of the Company (including a default with respect to any other series of securities), or under any mortgage, indenture or other instrument of the Company under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible or liable as obligor or guarantor) having an aggregate principal amount outstanding of at least $20,000,000, whether such indebtedness now exists or shall hereafter be incurred or created, which default shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged or such acceleration having been rescinded or annulled within a period of ten days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding Notes, a written notice specifying such default and requiring the Company to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a "Notice of Default" hereunder. Section 4.2 Notwithstanding any provisions to the contrary in the Indenture, upon any acceleration of the Notes under Section 502 of the Indenture, the amount immediately due and payable in respect of the Notes shall equal the Outstanding principal amount thereof, plus accrued interest, plus the Make-Whole Amount. ARTICLE 5 EFFECTIVENESS This Supplemental Indenture shall be effective for all purposes as of the date and time this Supplemental Indenture has been executed and delivered by the Company and the Trustee in accordance with Article Nine of the Indenture. As supplemented hereby, the Indenture is hereby confirmed as being in full force and effect. ARTICLE 6 MISCELLANEOUS Section 6.1 In the event any provision of this Supplemental Indenture shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof or any provision of the Indenture. Section 6.2 To the extent that any terms of this Supplemental Indenture or the Notes are inconsistent with the terms of the Indenture, the terms of this Supplemental Indenture or the Notes shall govern and supersede such inconsistent terms. Section 6.3 This Supplemental Indenture shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts. Section 6.4 This Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 8 IN WITNESS WHEREOF, the Company and the Trustee have caused this Supplemental Indenture to be executed as an instrument under seal in their respective corporate names as of the date first above written. HOSPITALITY PROPERTIES TRUST By: /s/ John G. Murray Name: John G. Murray Title: President STATE STREET BANK AND TRUST COMPANY, as Trustee By: /s/ Ruth A. Smith Name: Ruth A. Smith Title: Vice President EXHIBIT A (Face of Note) 9.125% Senior Notes due 2010 No. $__________ HOSPITALITY PROPERTIES TRUST promises to pay to _______________________________________ or registered assigns, the principal sum of _____________________________________ Dollars on July 15, 2010. Interest Payment Dates: January 15 and July 15. Record Dates: January 1 and July 1. CUSIP No: _____________ HOSPITALITY PROPERTIES TRUST By:______________________________ Name: Title: Dated: This is one of the Notes referred to in the within-mentioned Indenture: STATE STREET BANK AND TRUST COMPANY, as Trustee By:______________________________ Authorized Officer A-1 (Back of Note) HOSPITALITY PROPERTIES TRUST 9.125% Senior Notes due 2010 Capitalized terms used herein have the meanings assigned to them in the Indenture (as defined below) unless otherwise indicated. 1. Interest. Hospitality Properties Trust, a Maryland real estate investment trust (the "Company"), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. The Company shall pay in cash interest on the principal amount of this Note at the rate per annum of 9.125%. The Company will pay interest semi-annually in arrears on January 15 and July 15 of each year, commencing on January 15, 2001 or if any such day is not a Business Day (as defined in the Indenture), on the next succeeding Business Day (each an "Interest Payment Date"), to Holders of record on the immediately preceding January 1 and July 1. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. Interest shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of the original issuance of the Notes. 2. Method of Payment. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the record date next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. The Company, however, may pay principal, premium, if any, and interest by check payable in such money. It may mail an interest check to a Holder's registered address. 3. Indenture. The Company issued the Notes under an Indenture dated as of February 25, 1998 and Supplemental Indenture No. 4 dated as of July 14, 2000 (collectively, the "Indenture") between the Company and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb) as in effect on the date of the Indenture. The Notes are subject to all such terms, and Holders of the Notes are referred to the Indenture and such Act for a statement of such terms. The terms of the Indenture shall govern any inconsistencies between the Indenture and the Notes. The Notes are unsecured general obligations of the Company initially issued in an aggregate principal amount of $35,000,000. 4. Optional Redemption. The Notes will be subject to redemption at any time at the option of the Company, in whole or in part, upon not less than 30 nor more than 60 days' notice, at a redemption price equal to the sum of (i) the principal amount of the Notes being redeemed, plus accrued and unpaid interest to but excluding the applicable Redemption Date and (ii) the Make-Whole Amount. A-2 As used herein the term "Make-Whole Amount" means, in connection with any optional redemption or accelerated payment of any Notes, the excess, if any, of (i) the aggregate present value as of the date of such redemption or accelerated payment of each dollar of principal being redeemed or paid and the amount of interest (exclusive of interest accrued to the date of redemption or accelerated payment) that would have been payable in respect of such dollar if such redemption or accelerated payment had not been made, determined by discounting, on a semiannual basis, such principal and interest at the Reinvestment Rate (as defined herein) (determined on the third Business Day preceding the date such notice of redemption is given or declaration of acceleration is made) from the respective dates on which such principal and interest would have been payable if such redemption or accelerated payment had not been made, over (ii) the aggregate principal amount of the Notes being redeemed or paid. As used herein the term "Reinvestment Rate" means a rate per annum equal to the sum of 0.50% (fifty one hundredths of one percent) plus the yield on treasury securities at constant maturity under the heading "Week Ending" published in the Statistical Release (as defined herein) under the caption "Treasury Constant Maturities" for the maturity (rounded to the nearest month) corresponding to the remaining life to maturity, as of the payment date of the principal being redeemed or paid. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used. As used herein the term "Statistical Release" means the statistical release designated "H.15(519)" or any successor publication which is published weekly by the Federal Reserve System and which establishes yields on actively traded United States government securities adjusted to constant maturities or, if such statistical release is not published at the time of any determination under the Supplemental Indenture, then any publicly available source of similar market data which shall be designated by the Company. 5. Mandatory Redemption. The Company shall not be required to make sinking fund or redemption payments with respect to the Notes. 6. Notice of Redemption. Notice of redemption shall be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at its registered address. Notes may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date, interest ceases to accrue on Notes or portions of them called for redemption. 7. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Security Registrar and the Trustee 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 Security Registrar need not exchange or register the transfer A-3 of any Note or portion of a Note selected for redemption. Also, it need not exchange or register the transfer of any Notes for a period of 15 days before the mailing of a notice of redemption of Notes, or during the period between a record date and the corresponding Interest Payment Date. 8. Defaults and Remedies. In case an Event of Default (as defined in the Indenture) with respect to the Notes shall have occurred and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the provisions provided in the Indenture. 9. Actions of Holders. The Indenture contains provisions permitting the holders of not less than a majority of the aggregate principal amount of the outstanding Notes, subject to certain exceptions as provided in the Indenture, on behalf of the holders of all such Notes at a meeting duly called and held as provided in the Indenture, to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided in the Indenture to be made, given or taken by the holders of the Notes, including without limitation, waiving (a) compliance by the Company with certain provisions of the Indenture, and (b) certain past defaults under the Indenture and their consequences. Any resolution passed or decision taken at any meeting of the holders of the Notes in accordance with the provisions of the Indenture shall be conclusive and binding upon such holders and upon all future holders of this Note and other Notes issued upon the registration of transfer hereof or in exchange heretofore or in lieu hereof 10. Persons Deemed Owners. The Company, the Trustee, and any agent of the Company or the Trustee may deem and treat the Person in whose name this Note is registered on the Security Register as its absolute owner for all purposes. 11. Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. 12. Governing Law. THE INTERNAL LAW OF THE COMMONWEALTH OF MASSACHUSETTS SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THE NOTES. 13. No Personal Liability. THE DECLARATION OF TRUST OF THE COMPANY, AMENDED AND RESTATED ON AUGUST 21, 1995, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HOSPITALITY PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE COMPANY. ALL PERSONS DEALING WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. A-4 The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Request may be made to: Hospitality Properties Trust 400 Centre Street Newton, MA 02458 Telecopier No.: (617) 969-5730 Attention: President A-5 ASSIGNMENT FORM To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to (Insert assignee's soc. sec. or tax I.D. no.) (Print or type assignee's name, address and zip code) and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him. Date: Your Signature: (Sign exactly as your name appears on the face of this Note) Signature Guarantee: EX-4.9 5 0005.txt EXHIBIT 4.9 SUPPLEMENTAL INDENTURE NO. 5 by and between HOSPITALITY PROPERTIES TRUST and STATE STREET BANK AND TRUST COMPANY as of July 28, 2000 SUPPLEMENTAL TO THE INDENTURE DATED AS OF FEBRUARY 25, 1998 ------------------------------------ HOSPITALITY PROPERTIES TRUST 9.125% Senior Notes due 2010 This SUPPLEMENTAL INDENTURE NO. 5 (this "Supplemental Indenture") made and entered into as of July 28, 2000 between HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust (the "Company"), and STATE STREET BANK AND TRUST COMPANY, a Massachusetts trust company, as Trustee (the "Trustee"). WITNESSETH THAT: WHEREAS, the Company and the Trustee have executed and delivered an Indenture, dated as of February 25, 1998 (the "Indenture"), relating to the Company's issuance, from time to time, of various series of debt securities; and WHEREAS, the Company has previously issued $35,000,000 of its 9.125% Senior Notes due 2010 under Supplemental Indenture No 4, dated as of July 14, 2000, between the Company and the Trustee ( "Supplemental Indenture No. 4" ) and the Indenture; and WHEREAS, under the previous of said Supplemental Indenture No. 4, the Company is permitted to reopen the series of Notes established thereunder, and the Company has determined so to reopen said series, and to issue an additional $15,000,000 of its 9.125% Series Notes due 2010; WHEREAS, the Indenture provides that certain terms and conditions for each series of debt securities issued by the Company thereunder may be set forth in an indenture supplemental to the Indenture; NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH: ARTICLE 1 DEFINED TERMS Section 1.1 The following definitions supplement, and, to the extent inconsistent with, replace the definitions in Section 101 of the Indenture: "Acquired Debt" means Debt of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with the acquisition of assets from such Person, in each case, other than Debt incurred in connection with, or in contemplation of, such Person becoming a Subsidiary or such acquisition. Acquired Debt shall be deemed to be incurred on the date of the related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary. "Annual Debt Service" as of any date means the maximum amount which is expensed in any 12-month period for interest on Debt of the Company and its Subsidiaries. "Business Day" means any day other than a Saturday or Sunday or a day on which banking institutions in the City of New York or in the city in which the Corporate Trust Office of the Trustee is located, are required or authorized to close. "Capital Stock" means, with respect to any Person, any capital stock (including preferred stock), shares, interests, participation or other ownership interests (however designated) of such Person and any rights (other than debt securities convertible into or exchangeable for capital stock), warrants or options to purchase any thereof. "Consolidated Income Available for Debt Service" for any period means Earnings from Operations of the Company and its Subsidiaries plus amounts which have been deducted, and minus amounts which have been added, for the following (without duplication): (i) interest on Debt of the Company and its Subsidiaries, (ii) cash reserves made by lessees as required by the Company's leases for periodic replacement and refurbishment of the Company's assets, (iii) provision for taxes of the Company and its Subsidiaries based on income, (iv) amortization of debt discount and deferred financing costs, (v) provisions for gains and losses on properties and property depreciation and amortization, (vi) the effect of any noncash charge resulting from a change in accounting principles in determining Earnings from Operations for such period and (vii) amortization of deferred charges. "Debt" of the Company or any Subsidiary means, without duplication, any indebtedness of the Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed money or evidenced by bonds, notes, debentures or similar instruments, (ii) indebtedness for borrowed money secured by any Encumbrance existing on property owned by the Company or any Subsidiary, to the extent of the lesser of (x) the amount of indebtedness so secured and (y) the fair market value of the property subject to such Encumbrance, (iii) the reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued (other than letters of credit issued to provide credit enhancement or support with respect to other indebtedness of the Company or any Subsidiary otherwise reflected as Debt hereunder) or amounts representing the balance deferred and unpaid of the purchase price of any property or services, except any such balance that constitutes an accrued expense or trade payable, or all conditional sale obligations or obligations under any title retention agreement, (iv) the principal amount of all obligations of the Company or any Subsidiary with respect to redemption, repayment or other repurchase of any Disqualified Stock, or (v) any lease of property by the Company or any Subsidiary as lessee which is reflected on the Company's consolidated balance sheet as a capitalized lease in accordance with GAAP, to the extent, in the case of items of indebtedness under (i) through (iii) above, that any such items (other than letters of credit) would appear as a liability on the Company's consolidated balance sheet in accordance with GAAP, and also includes, to the extent not otherwise included, any obligation by the Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course of business), Debt of another Person (other than the Company or any Subsidiary) (it being understood that Debt shall be deemed to be incurred by the Company or any Subsidiary whenever the Company or such Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof). "Disqualified Stock" means, with respect to any Person, any Capital Stock of such Person which by the terms of such Capital Stock (or by the terms of any security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise (i) matures or is mandatorily redeemable, pursuant to a sinking fund obligation or 2 otherwise (other than Capital Stock which is redeemable solely in exchange for common stock or shares), (ii) is convertible into or exchangeable or exercisable for Debt or Disqualified Stock, or (iii) is redeemable at the option of the holder thereof, in whole or in part (other than Capital Stock which is redeemable solely in exchange for common stock or shares), in each case on or prior to the stated maturity of the Notes. "Earnings from Operations" for any period means net earnings excluding gains and losses on sales of investments, extraordinary items and property valuation losses, as reflected in the financial statements of the Company and its Subsidiaries for such period, determined on a consolidated basis in accordance with GAAP. "Encumbrance" means any mortgage, lien, charge, pledge or security interest of any kind. "Make-Whole Amount" means, in connection with any optional redemption or accelerated payment of any Notes, the excess, if any, of (i) the aggregate present value as of the date of such redemption or accelerated payment of each dollar of principal being redeemed or paid and the amount of interest (exclusive of interest accrued to the date of redemption or accelerated payment) that would have been payable in respect of such dollar if such redemption or accelerated payment had not been made, determined by discounting, on a semiannual basis, such principal and interest at the Reinvestment Rate (determined on the third Business Day preceding the date such notice of redemption is given or declaration of acceleration is made) from the respective dates on which such principal and interest would have been payable if such redemption or accelerated payment had not been made, over (ii) the aggregate principal amount of the Notes being redeemed or paid. For purposes of this Supplemental Indenture and the Notes, references in the Indenture to the payment of the principal (and premium, if any) and interest on the Notes shall be deemed to include the payment of the Make-Whole Amount, if any, due upon redemption with respect to the Notes. The Make-Whole Amount shall be calculated by the Company and set forth in an Officer's Certificate delivered to the Trustee, and the Trustee shall be entitled to rely on said Officer's Certificate. "Notes" means the Company's 9.125% Senior Notes due 2010, issued under this Supplemental Indenture or Supplemental Indenture No. 4 and the Indenture, as amended or supplemented from time to time. "Reinvestment Rate" means a rate per annum equal to the sum of 0.50% (fifty one-hundredths of one percent) plus the yield on treasury securities at constant maturity under the heading "Week Ending" published in the Statistical Release under the caption "Treasury Constant Maturities" for the maturity (rounded to the nearest month) corresponding to the remaining life to maturity, as of the payment date of the principal being redeemed or paid. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used. 3 "Secured Debt" means Debt secured by any mortgage, lien, charge, pledge or security interest of any kind. "Statistical Release" means the statistical release designated "H.15(519)" or any successor publication which is published weekly by the Federal Reserve System and which establishes yields on actively traded United States government securities adjusted to constant maturities or, if such statistical release is not published at the time of any determination under this Supplemental Indenture, then any publicly available source of similar market data which shall be designated by the Company. "Subsidiary" means any corporation or other entity of which a majority of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests of which are owned, directly or indirectly, by the Company or one or more other Subsidiaries of the Company. For the purposes of this definition, "voting equity securities" means equity securities having voting power for the election of directors, whether at all times or only so long as no senior class of security has such voting power by reason of any contingency. "Total Assets" as of any date means the sum of (i) the Undepreciated Real Estate Assets and (ii) all other assets of the Company and its Subsidiaries determined in accordance with GAAP (but excluding accounts receivable and intangibles). "Total Unencumbered Assets" means the sum of (i) those Undepreciated Real Estate Assets not subject to an Encumbrance for borrowed money and (ii) all other assets of the Company and its Subsidiaries not subject to an Encumbrance for borrowed money determined in accordance with GAAP (but excluding accounts receivable and intangibles). "Undepreciated Real Estate Assets" as of any date means the cost (original cost plus capital improvements) of real estate assets of the Company and its Subsidiaries on such date, before depreciation and amortization determined on a consolidated basis in accordance with GAAP. "Unsecured Debt" means Debt which is not secured by any of the properties of the Company or any Subsidiary. ARTICLE 2 TERMS OF THE NOTES Section 2.1 Pursuant to Section 301 of the Indenture, the Notes shall have the following terms and conditions: (a) Title; Limitation on Aggregate Principal Amount; Form of Notes. The Notes shall be Registered Securities under the Indenture, shall be of the same series as those issued under Supplemental Indenture No. 4 and shall, together with those previously issued Notes under Supplemental Indenture No. 4, be known as the Company's "9.125% Senior Notes due 2010." The aggregate principal amount of Notes which may be authenticated and delivered under this 4 Supplemental Indenture shall not, except as permitted by the provisions of the Indenture, exceed $15,000,000, provided that the Company may, without the consent of the holders of the Notes, reopen this series and issue additional Notes under the Indenture and this Supplemental Indenture in addition to the $50,000,000 of Notes authorized as of the date hereof. The Notes (together with the Trustee's certificate of authentication) shall be substantially in the form of Exhibit A hereto or in the form of Exhibit A to Supplemental Indenture No. 4, each which is hereby incorporated in and made a part of this Supplemental Indenture. Supplemental Indenture No. 4 is hereby modified to provide that Notes issued thereunder (together with the Trustee's certificate of authentication) shall be substantially in the form of Exhibit A hereto or in the form of Exhibit A to Supplemental Indenture No. 4, each which is hereby incorporated in and made a part of Supplemental Indenture No. 4. The Notes will be issued in the form of one or more registered global security without coupons ("Global Notes") which will be deposited with, or on behalf of, The Depository Trust Company ("DTC"), and registered in the name of DTC's nominee, Cede & Co. Except under the circumstance described below, the Notes will not be issuable in definitive form. Unless and until it is exchanged in whole or in part for the individual notes represented thereby, a Global Note may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by DTC or any nominee of DTC to a successor depositary or any nominee of such successor. So long as DTC or its nominee is the registered owner of a Global Note, DTC or such nominee, as the case may be, will be considered the sole owner or holder of the Notes represented by such Global Note for all purposes under this Supplemental Indenture. Except as described below, owners of beneficial interest in Notes evidenced by a Global Note will not be entitled to have any of the individual Notes represented by such Global Note registered in their names, will not receive or be entitled to receive physical delivery of any such Notes in definitive form and will not be considered the owners or holders thereof under the Indenture or this Supplemental Indenture. If DTC is at any time unwilling, unable or ineligible to continue as depositary and a successor depositary is not appointed by the Company within 90 days, the Company will issue individual Notes in exchange for the Global Note or Global Notes representing such Notes. In addition, the Company may at any time and in its sole discretion, subject to certain limitations set forth in the Indenture, determine not to have any of such Notes represented by one or more Global Notes and, in such event, will issue individual Notes in exchange for the Global Note or Global Notes representing the Notes. Individual Notes so issued will be issued in denominations of $1,000 and integral multiples thereof. (b) Interest and Interest Rate. The Notes will bear interest at a rate of 9.125% per annum, from July 14, 2000 (except as otherwise provided in an applicable supplemental indenture) or from the immediately preceding Interest Payment Date to which interest has been paid or duly provided for, payable semi-annually in arrears on January 15 and July 15 of each year, commencing January 15, 2001 (each of which shall be an "Interest Payment Date"), to the Persons in whose names the Notes are registered in the Security Register at the close of business 5 on the date 14 calendar days immediately preceding the applicable interest payment date (whether or not a Business Day), as the case may be, (each, a "Regular Record Date"). (c) Principal Repayment; Currency. The stated maturity of the Notes is July 15, 2010, provided, however, the Notes may be earlier redeemed at the option of the Company as provided in paragraph (d) below. The principal of each Note payable on its maturity date shall be paid against presentation and surrender thereof at the Corporate Trust Office of the Trustee, located initially at Two Avenue de Lafayette, Boston, Massachusetts 02111, in such coin or currency of the United States of America as at the time of payment is legal tender for the payment of public or private debts. The Company will not pay Additional Amounts (as defined in the Indenture) on the Notes. (d) Redemption at the Option of the Company; Acceleration. The Notes will be subject to redemption at any time at the option of the Company, in whole or in part, upon not less than 30 nor more than 60 days' notice to each Holder of Notes to be redeemed at its address appearing in the Security Register, at a price equal to the sum of (i) the principal amount of the Notes being redeemed, plus accrued and unpaid interest to but excluding the applicable Redemption Date and (ii) the Make-Whole Amount. Upon the acceleration of the Notes in accordance with Section 502 of the Indenture, the principal amount of the Notes, plus accrued and unpaid interest thereon and the Make-Whole Amount, shall become due and payable immediately. (e) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Company shall be directed to it at 400 Centre Street, Newton, Massachusetts 02458, Attention: President; notices to the Trustee shall be directed to it at Two Avenue de Lafayette, Boston, Massachusetts 02111, Attention: Corporate Trust Department, Re: Hospitality Properties Trust 9.125% Senior Notes due 2010, or as to either party, at such other address as shall be designated by such party in a written notice to the other party. (f) Global Note Legend. Each Global Note shall bear the following legend on the face thereof: UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO 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. 6 (g) Applicability of Discharge, Defeasance and Covenant Defeasance Provisions. The Discharge, Defeasance and Covenant Defeasance provisions in Article Fourteen of the Indenture will apply to the Notes. ARTICLE 3 ADDITIONAL COVENANTS Section 3.1 In addition to the covenants of the Company set forth in Article Ten of the Indenture, for the benefit of the holders of the Notes: (a) Limitations on Incurrence of Debt. (i) The Company will not, and will not permit any Subsidiary to, incur any Debt if, immediately after giving effect to the incurrence of such additional Debt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Debt of the Company and its Subsidiaries on a consolidated basis determined in accordance with GAAP is greater than 60% of the sum ("Adjusted Total Assets") of (without duplication) (i) the Total Assets of the Company and its Subsidiaries as of the end of the calendar quarter covered in the Company's Annual Report on Form 10-K, or the Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Securities and Exchange Commission (or, if such filing is not permitted under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), with the Trustee) prior to the incurrence of such additional Debt and (ii) the purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received (to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the Company or any Subsidiary since the end of such calendar quarter, including those proceeds obtained in connection with the incurrence of such additional Debt. (ii) In addition to the foregoing limitations on the incurrence of Debt, the Company will not, and will not permit any Subsidiary to, incur any Secured Debt if, immediately after giving effect to the incurrence of such additional Secured Debt and the application of the proceeds thereof, the aggregate principal amount of all outstanding Secured Debt of the Company and its Subsidiaries on a consolidated basis is greater than 40% of Adjusted Total Assets. (iii) In addition to the foregoing limitations on the incurrence of Debt, the Company will not, and will not permit any Subsidiary to, incur any Debt if the ratio of Consolidated Income Available for Debt Service to the Annual Debt Service for the four consecutive fiscal quarters most recently ended prior to the date on which such additional Debt is to be incurred shall have been less than 1.5x, on a pro forma basis after giving effect thereto and to the application of the proceeds therefrom, and calculated on the assumption that (i) such Debt and any other Debt incurred by the Company and its Subsidiaries since the first day of such four-quarter period and the application of the proceeds therefrom, including to refinance other Debt, had occurred at the beginning of such period; (ii) the repayment or retirement of any other Debt by the Company and its Subsidiaries since the first date of such four-quarter period had been repaid or retired at the beginning of such period (except that, in making such computation, the amount of Debt under 7 any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period); (iii) in the case of Acquired Debt or Debt incurred in connection with any acquisition since the first day of such four-quarter period, the related acquisition had occurred as of the first day of such period with appropriate adjustments with respect to such acquisition being included in such pro forma calculation; and (iv) in the case of any acquisition or disposition by the Company or its Subsidiaries of any asset or group of assets since the first day of such four-quarter period, whether by merger, stock purchase or sale, or asset purchase or sale, such acquisition or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments with respect to such acquisition or disposition being included in such pro forma calculation. If the Debt giving rise to the need to make the foregoing calculation or any other Debt incurred after the first day of the relevant four-quarter period bears interest at a floating rate then, for purposes of calculating the Annual Debt Service, the interest rate on such Debt shall be computed on a pro forma basis as if the average interest rate which would have been in effect during the entire such four-quarter period had been the applicable rate for the entire such period. (b) Maintenance of Total Unencumbered Assets. The Company and its Subsidiaries will maintain at all times Total Unencumbered Assets of not less than 200% of the aggregate outstanding principal amount of the Unsecured Debt of the Company and its Subsidiaries on a consolidated basis. ARTICLE 4 ADDITIONAL EVENTS OF DEFAULT Section 4.1 For purposes of this Supplemental Indenture and the Notes, in addition to the Events of Default set forth in Section 501 of the Indenture, it shall also constitute an "Event of Default" if a default under any bond, debenture, note or other evidence of indebtedness of the Company (including a default with respect to any other series of securities), or under any mortgage, indenture or other instrument of the Company under which there may be issued or by which there may be secured or evidenced any indebtedness for money borrowed by the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible or liable as obligor or guarantor) having an aggregate principal amount outstanding of at least $20,000,000, whether such indebtedness now exists or shall hereafter be incurred or created, which default shall have resulted in such indebtedness becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged or such acceleration having been rescinded or annulled within a period of ten days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the outstanding Notes, a written notice specifying such default and requiring the Company to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a "Notice of Default" hereunder. 8 Section 4.2 Notwithstanding any provisions to the contrary in the Indenture, upon any acceleration of the Notes under Section 502 of the Indenture, the amount immediately due and payable in respect of the Notes shall equal the Outstanding principal amount thereof, plus accrued interest, plus the Make-Whole Amount. ARTICLE 5 EFFECTIVENESS This Supplemental Indenture shall be effective for all purposes as of the date and time this Supplemental Indenture has been executed and delivered by the Company and the Trustee in accordance with Article Nine of the Indenture. As supplemented hereby, the Indenture is hereby confirmed as being in full force and effect. ARTICLE 6 MISCELLANEOUS Section 6.1 In the event any provision of this Supplemental Indenture shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof or any provision of the Indenture. Section 6.2 To the extent that any terms of this Supplemental Indenture or the Notes are inconsistent with the terms of the Indenture, the terms of this Supplemental Indenture or the Notes shall govern and supersede such inconsistent terms. Section 6.3 This Supplemental Indenture shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts. Section 6.4 This Supplemental Indenture may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. 9 IN WITNESS WHEREOF, the Company and the Trustee have caused this Supplemental Indenture to be executed as an instrument under seal in their respective corporate names as of the date first above written. HOSPITALITY PROPERTIES TRUST By: /s/ John G. Murray Name: John G. Murray Title: President STATE STREET BANK AND TRUST COMPANY, as Trustee By: /s/ Julie A. Balerna Name: Julie A. Balerna Title: Assistant Vice President 10 EXHIBIT A (Face of Note) 9.125% Senior Notes due 2010 No. $__________ HOSPITALITY PROPERTIES TRUST promises to pay to _______________________________________ or registered assigns, the principal sum of _____________________________________ Dollars on July 15, 2010. Interest Payment Dates: January 15 and July 15. Record Dates: January 1 and July 1. CUSIP No: _____________ HOSPITALITY PROPERTIES TRUST By:______________________________ Name: Title: Dated: This is one of the Notes referred to in the within-mentioned Indenture: STATE STREET BANK AND TRUST COMPANY, as Trustee By:______________________________ Authorized Officer A-1 [THE FOLLOWING CONSTITUTES THE REVERSE OF THE SECURITY] HOSPITALITY PROPERTIES TRUST 9.125% Senior Notes due 2010 Capitalized terms used herein have the meanings assigned to them in the Indenture (as defined below) unless otherwise indicated. 1. Interest. Hospitality Properties Trust, a Maryland real estate investment trust (the "Company"), promises to pay interest on the principal amount of this Note at the rate and in the manner specified below. The Company shall pay in cash interest on the principal amount of this Note at the rate per annum of 9.125%. The Company will pay interest semi-annually in arrears on January 15 and July 15 of each year, commencing on January 15, 2001 or if any such day is not a Business Day (as defined in the Indenture), on the next succeeding Business Day (each an "Interest Payment Date"), to Holders of record on the immediately preceding January 1 and July 1. Interest will be computed on the basis of a 360-day year consisting of twelve 30-day months. Interest shall accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the date of the original issuance of the Notes. 2. Method of Payment. The Company will pay interest on the Notes (except defaulted interest) to the Persons who are registered Holders of Notes at the close of business on the record date next preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. The Company, however, may pay principal, premium, if any, and interest by check payable in such money. It may mail an interest check to a Holder's registered address. 3. Indenture. The Company issued the Notes as a part of a series issued under an Indenture dated as of February 25, 1998, a Supplemental Indenture No. 4 dated as of July 14, 2000 and a Supplemental Indenture No. 5 dated as of July 28, 2000 (collectively, the "Indenture") between the Company and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb) as in effect on the date of the Indenture. The Notes are subject to all such terms, and Holders of the Notes are referred to the Indenture and such Act for a statement of such terms. The terms of the Indenture shall govern any inconsistencies between the Indenture and the Notes. The Notes are unsecured general obligations of the Company. The Notes initially issued pursuant to said Supplemental Indenture No. 4 or Supplemental Indenture No. 5 are in an aggregate principal amount of $50,000,000. 4. Optional Redemption. The Notes will be subject to redemption at any time at the option of the Company, in whole or in part, upon not less than 30 nor more than 60 days' notice, at a redemption price equal to the sum of (i) the principal amount of the Notes being redeemed, A-2 plus accrued and unpaid interest to but excluding the applicable Redemption Date and (ii) the Make-Whole Amount. As used herein the term "Make-Whole Amount" means, in connection with any optional redemption or accelerated payment of any Notes, the excess, if any, of (i) the aggregate present value as of the date of such redemption or accelerated payment of each dollar of principal being redeemed or paid and the amount of interest (exclusive of interest accrued to the date of redemption or accelerated payment) that would have been payable in respect of such dollar if such redemption or accelerated payment had not been made, determined by discounting, on a semiannual basis, such principal and interest at the Reinvestment Rate (as defined herein) (determined on the third Business Day preceding the date such notice of redemption is given or declaration of acceleration is made) from the respective dates on which such principal and interest would have been payable if such redemption or accelerated payment had not been made, over (ii) the aggregate principal amount of the Notes being redeemed or paid. As used herein the term "Reinvestment Rate" means a rate per annum equal to the sum of 0.50% (fifty one-hundredths of one percent) plus the yield on treasury securities at constant maturity under the heading "Week Ending" published in the Statistical Release (as defined herein) under the caption "Treasury Constant Maturities" for the maturity (rounded to the nearest month) corresponding to the remaining life to maturity, as of the payment date of the principal being redeemed or paid. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Reinvestment Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For purposes of calculating the Reinvestment Rate, the most recent Statistical Release published prior to the date of determination of the Make-Whole Amount shall be used. As used herein the term "Statistical Release" means the statistical release designated "H.15(519)" or any successor publication which is published weekly by the Federal Reserve System and which establishes yields on actively traded United States government securities adjusted to constant maturities or, if such statistical release is not published at the time of any determination under the Supplemental Indenture, then any publicly available source of similar market data which shall be designated by the Company. 5. Mandatory Redemption. The Company shall not be required to make sinking fund or redemption payments with respect to the Notes. 6. Notice of Redemption. Notice of redemption shall be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at its registered address. Notes may be redeemed in part but only in whole multiples of $1,000, unless all of the Notes held by a Holder are to be redeemed. On and after the redemption date, interest ceases to accrue on Notes or portions of them called for redemption. 7. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of $1,000 and integral multiples of $1,000 in excess thereof. The A-3 transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Security Registrar and the Trustee 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 Security Registrar need not exchange or register the transfer of any Note or portion of a Note selected for redemption. Also, it need not exchange or register the transfer of any Notes for a period of 15 days before the mailing of a notice of redemption of Notes, or during the period between a record date and the corresponding Interest Payment Date. 8. Defaults and Remedies. In case an Event of Default (as defined in the Indenture) with respect to the Notes shall have occurred and be continuing, the principal hereof may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the provisions provided in the Indenture. 9. Actions of Holders. The Indenture contains provisions permitting the holders of not less than a majority of the aggregate principal amount of the outstanding Notes, subject to certain exceptions as provided in the Indenture, on behalf of the holders of all such Notes at a meeting duly called and held as provided in the Indenture, to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided in the Indenture to be made, given or taken by the holders of the Notes, including without limitation, waiving (a) compliance by the Company with certain provisions of the Indenture, and (b) certain past defaults under the Indenture and their consequences. Any resolution passed or decision taken at any meeting of the holders of the Notes in accordance with the provisions of the Indenture shall be conclusive and binding upon such holders and upon all future holders of this Note and other Notes issued upon the registration of transfer hereof or in exchange heretofore or in lieu hereof 10. Persons Deemed Owners. The Company, the Trustee, and any agent of the Company or the Trustee may deem and treat the Person in whose name this Note is registered on the Security Register as its absolute owner for all purposes. 11. Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent. 12. Governing Law. THE INTERNAL LAW OF THE COMMONWEALTH OF MASSACHUSETTS SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE AND THE NOTES. 13. No Personal Liability. THE DECLARATION OF TRUST OF THE COMPANY, AMENDED AND RESTATED ON AUGUST 21, 1995, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED IN THE OFFICE OF THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HOSPITALITY PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF THE COMPANY SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, THE COMPANY. ALL PERSONS DEALING A-4 WITH THE COMPANY, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF THE COMPANY FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. The Company will furnish to any Holder upon written request and without charge a copy of the Indenture. Request may be made to: Hospitality Properties Trust 400 Centre Street Newton, MA 02458 Telecopier No.: (617) 969-5730 Attention: President A-5 ASSIGNMENT FORM To assign this Note, fill in the form below: (I) or (we) assign and transfer this Note to (Insert assignee's soc. sec. or tax I.D. no.) (Print or type assignee's name, address and zip code) and irrevocably appoint to transfer this Note on the books of the Company. The agent may substitute another to act for him. Date: Your Signature: (Sign exactly as your name appears on the face of this Note) Signature Guarantee: EX-8.1 6 0006.txt EXHIBIT 8.1 [Sullivan & Worcester LLP Letterhead] March 30, 2001 Hospitality Properties Trust 400 Centre Street Newton, Massachusetts 02458 Ladies and Gentlemen: In connection with the filing by Hospitality Properties Trust, a Maryland real estate investment trust (the "Company"), of its Annual Report on Form 10-K for the year ended December 31, 2000 (the "Form 10-K"), under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the following opinion is furnished to you to be filed with the Securities and Exchange Commission (the "SEC") as Exhibit 8.1 to the Form 10-K. We have acted as counsel for the Company in connection with the preparation of its Form 10-K, and we have examined originals or copies, certified or otherwise identified to our satisfaction, of corporate records, certificates and statements of officers and accountants of the Company and of public officials, and such other documents as we have considered relevant and necessary in order to furnish the opinions hereinafter set forth. Specifically, and without limiting the generality of the foregoing, we have reviewed: (i) the declaration of trust and the by-laws of the Company, each as amended and restated; and (ii) the sections in the Company's Form 10-K captioned "Federal Income Tax Considerations" and "ERISA Plans, Keogh Plans and Individual Retirement Accounts." With respect to all questions of fact on which such opinions are based, we have assumed the accuracy and completeness of and have relied on the information set forth in the Form 10-K and in the documents incorporated therein by reference, and on representations made to us by officers of the Company. We have not independently verified such information. The opinion set forth below is based upon the Internal Revenue Code of 1986, as amended, the Treasury Regulations issued thereunder, published administrative interpretations thereof, and judicial decisions with respect thereto, all as of the date hereof (collectively, the "Tax Laws"), and upon the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor regulations issued thereunder, published administrative interpretations Hospitality Properties Trust March 30, 2001 Page 2 thereof, and judicial decisions with respect thereto, all as of the date hereof (collectively, the "ERISA Laws"). No assurance can be given that the Tax Laws or the ERISA Laws will not change. In preparing the discussions with respect to Tax Laws and ERISA Laws matters in the sections of the Form 10-K captioned "Federal Income Tax Considerations" and "ERISA Plans, Keogh Plans and Individual Retirement Accounts," we have made certain assumptions and expressed certain conditions and qualifications therein, all of which assumptions, conditions and qualifications are incorporated herein by reference. Based upon and subject to the foregoing, we are of the opinion that the discussions with respect to Tax Laws and ERISA Laws matters in the sections of the Form 10-K captioned "Federal Income Tax Considerations" and "ERISA Plans, Keogh Plans and Individual Retirement Accounts," in all material respects are accurate and fairly summarize the Tax Laws issues and ERISA Laws issues addressed therein, and hereby confirm that the opinions of counsel referred to in said sections represent our opinions on the subject matter thereof. We hereby consent to the incorporation of this opinion by reference as an exhibit to the Form 10-K and to the reference of our firm therein, and to the incorporation of this opinion by reference in the Company's Registration Statements on Form S-3 (File Nos. 333-43573, 333-89307) under the Securities Act of 1933, as amended (the "Act"). In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or under the rules and regulations of the SEC promulgated thereunder. Very truly yours, /s/ Sullivan & Worcester LLP SULLIVAN & WORCESTER LLP EX-10.5 7 0007.txt EXHIBIT 10.5 HOSPITALITY PROPERTIES TRUST FIRST AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT This FIRST AMENDMENT AND LIMITED WAIVER TO CREDIT AGREEMENT (this "Amendment") is dated as of January 26, 2001 and entered into by and among HOSPITALITY PROPERTIES TRUST, a Maryland real estate investment trust ("Borrower"), the financial institutions listed on the signature pages hereof ("Lenders"), DRESDNER BANK AG, NEW YORK BRANCH AND GRAND CAYMAN BRANCH, as agent for Lenders ("Agent"), and, for purposes of Section 4 hereof, the Guarantors listed on the signature pages hereof, and is made with reference to that certain Second Amended and Restated Revolving Credit Agreement dated as of June 10, 1998 (the "Credit Agreement") by and among Borrower, Lenders and Agent. Capitalized terms used herein without definition shall have the same meanings herein as set forth in the Credit Agreement. WHEREAS, Borrower intends to acquire 100% of the shares of another company identified to the Lenders in a letter dated December 20, 2000 from the Borrower to the Agent and the Lenders (the "December 20 Letter"), on substantially the terms set forth therein (the "2001 Acquisition"), and shortly thereafter to sell certain of the properties owned by such company to an Affiliate of Borrower identified in the December 20 Letter, also on substantially the terms described therein; and WHEREAS, Borrower, Lenders and Agent desire (i) to make certain amendments to the Credit Agreement in connection with the 2001 Acquisition, and (ii) to waive the provisions of the Credit Agreement to the extent required to permit the 2001 Acquisition and certain related transactions. NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows: Section 1. AMENDMENTS TO THE CREDIT AGREEMENT. 1.1 Amendment to Article 1: Definitions. Section 1.1 of the Credit Agreement is hereby amended by: A. inserting the following new definitions, in the appropriate order: "2001 Acquisition" means the "2001 Acquisition" as defined in the First Amendment. "First Amendment" means the First Amendment and Limited Waiver to Credit Agreement dated as of January 26, 2001. "TRS" means a Subsidiary of the Borrower which is a "taxable REIT subsidiary" within the meaning of Section 856(l) of the Code. B. changing the definition of "Business" as follows: (i) redesignating the term defined therein as "Business" as "Primary Business," deleting the words "third party" which appear immediately before the word "Lessees" in the second line thereof and reinserting the definition (now designated as the definition of "Primary Business") in the appropriate alphabetical order; and (ii) inserting the following new definitions in the appropriate alphabetical order: "Business" means the Primary Business and the Permitted Ancillary Business. "Permitted Ancillary Business" means (a) the management, operation and maintenance in the ordinary course of business of the hotel management business acquired in the 2001 Acquisition and ownership of other non-qualified REIT assets acquired in the 2001 Acquisition in each case by Subsidiaries of Borrower approved for such purpose by Agent; provided, that the aggregate gross revenues of such Subsidiaries from the management and operation of such business constitutes less than 5% of the consolidated total revenues of Borrower and its Subsidiaries in any calendar year and (b) the leasing of hotel properties by TRSs; provided, that (i) Borrower is in compliance with Section 7.1(k) and (ii) if the Lease is with the Borrower or another of its Subsidiaries, Agent has approved the TRS as a Lessee under the Lease and the Lease is reasonably consistent (in the reasonable determination of Agent) with Leases that the Borrower and its Subsidiaries have previously entered with third parties. C. amending the definition of "Lessee" by deleting the parenthetical "(without Agent's approval)" from the first and second lines thereof and substituting the following parenthetical therefor: "(without Agent's approval, which shall not be granted unless the Lease is reasonably consistent (in the reasonable determination of Agent) with Leases that the Borrower and its Subsidiaries have previously entered with third parties)." D. changing the definition of "Permitted Mortgage Investments" by (i) inserting at the end of the third bullet point paragraph thereof the parenthetical "(except as permitted by Section 2 of the First Amendment)" and (ii) inserting the following words at the end of the last sentence of the last bullet point paragraph thereof "or properties acquired in the 2001 Acquisition." 1.2 Amendment to Article 5: Representations and Warranties. A. The first sentence of Section 5.11 of the Credit Agreement (Subsidiaries; Ownership of Stock) is hereby amended by deleting it in its entirety and inserting the following in substitution therefor: "The only direct or indirect Subsidiaries of Borrower are those listed in Section 5.11 of the Disclosure Schedule or those created or acquired after the Closing Date pursuant to 2 Section 7.7(c) or pursuant to the 2001 Acquisition and separately identified to the Agent in writing promptly upon their creation or acquisition." B. The first sentence of Section 5.14 of the Credit Agreement (Labor Matters) is hereby amended by deleting the first sentence thereof in its entirety and substituting the following therefor: "There are no labor contracts to which any Credit Party is a party, except such as have been identified by Borrower to the Agent in writing promptly upon their assumption or execution." 1.3 Amendment to Article 6: Affirmative Covenants. Section 6.1 of the Credit Agreement (Financial Reporting) is hereby amended by inserting the words "the 2001 Acquisition" immediately after the words "the business affairs and financial condition of all or any of the Credit Parties" in the second and third lines of clause (f) thereof. Without limiting the foregoing amendment Agent hereby requests and Borrower hereby agrees to provide Agent promptly with full details of any non-qualified REIT assets acquired in the 2001 Acquisition. 1.4 Amendment to Article 7: Financial Covenants; Negative Covenants. A. Section 7.1 of the Credit Agreement (Financial Covenants) is hereby amended by inserting the following as a new clause (k) at the end thereof: "(k) At the end of each Fiscal Quarter, the aggregate net book value of the assets of the Subsidiaries of the Borrower that are TRSs shall not exceed the lesser of (x) $200 million or (y) 10% of Consolidated Total Assets." B. Section 7.7 of the Credit Agreement (Investments) is hereby amended by inserting the words "Permitted Mortgage Investments and" at the beginning of clause (g) thereof. C. Section 7.10 of the Credit Agreement (Additional Subsidiaries) is hereby amended by deleting the word "and" after clause (iii) of the first sentence thereof and inserting the following as a new clause (v) at the end of such sentence "and (v) the 2001 Acquisition." Section 2. LIMITED WAIVER. 2.1 Waiver. Subject to the terms and conditions set forth herein and in reliance on the representations and warranties of Borrower herein contained, Lenders hereby waive compliance with the provisions of (a) Sections 7.3(d) and 7.5 of the Credit Agreement to the extent, and only to the extent, necessary to permit Borrower to incur (and the Guarantors to guaranty) Permitted New Indebtedness that matures before the Maturity Date in an amount up to $200,000,000 for the sole purpose of financing the 2001 Acquisition; provided, that such Permitted New Indebtedness is unsecured and (b) Sections 7.2, 7.3 and 7.8 of the Credit Agreement, to the extent, and only to the extent necessary to permit Borrower and its Subsidiaries to (i) own certain non-hotel properties acquired in the 2001 Acquisition and identified in the December 20 Letter, 3 assume the Indebtedness secured thereby and sell such properties and the Subsidiary that is the direct owner of the properties to an Affiliate identified in the first paragraph of the December 20 Letter; provided, that (x) such Indebtedness is existing on the date of the 2001 Acquisition and not created in anticipation thereof; (y) such properties are sold to, and such Indebtedness assumed by, such Affiliate within 35 days of the date of consummation of the 2001 Acquisition and (z) none of the Credit Parties remain liable after such sale with respect to such Indebtedness; (ii) provide seller financing not to exceed $250,000,000 to such Affiliate in connection with the sale of such properties and (iii) manage and operate such properties; provided, that (x) the transactions described in clauses (ii) and (iii) hereof are upon fair and reasonable terms no less favorable to any Credit Party than could be obtained in a comparable arm's length transaction with an unaffiliated Person; and (y) the financing described in clause (ii) hereof is secured by Permitted Mortgage Investments. 2.2 Consent to Change in Basis of Calculations of Assigned Value in Certain Cases. The Required Lenders hereby consent to the "Assigned Value" for those 10 Hotels (as identified in the first bullet point of the third paragraph of December 20 Letter) that will be acquired in the 2001 Acquisition being calculated on the basis described in the second bullet point paragraph of the definition of "Assigned Value" set forth in Section 1.1 of the Credit Agreement even though the Hotels will have been owned for less than six full Fiscal Quarters. 2.3 Limitation of Waiver. Without limiting the generality of the provisions of Section 10.12 of the Credit Agreement, the waiver set forth above shall be limited precisely as written and nothing in this Amendment shall be deemed to: (a) constitute a waiver of compliance by Borrower with respect to (i) Sections 7.2, 7.3, 7.5 or 7.8 of the Credit Agreement in any other instance or (ii) any other term, provision or condition of the Credit Agreement or any other instrument or agreement referred to therein (whether in connection with the 2001 Acquisition and the related transactions or otherwise); or (b) prejudice any right or remedy that Agent or any Lender may now have or may have in the future under or in connection with the Credit Agreement or any other instrument or agreement referred to therein. Section 3. BORROWER'S REPRESENTATIONS AND WARRANTIES. In order to induce Lenders to enter into this Amendment and to amend the Credit Agreement in the manner provided herein, Borrower represents and warrants to each Lender that the following statements are true, correct and complete: A. Trust or Corporate Power and Authority. Borrower and each Guarantor has all requisite organizational power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its respective obligations under, the Credit Agreement as amended by this Amendment (the "Amended Agreement"). 4 B. Authorization of Agreements. The execution and delivery of this Amendment and the performance of the Amended Agreement have been duly authorized by all necessary trust or corporate action on the part of Borrower and Guarantors. C. No Conflict. The execution and delivery by Borrower and Guarantors of this Amendment and the performance by Borrower and Guarantors of the Amended Agreement do not and will not (i) violate any provision of any law or any governmental rule or regulation applicable to Borrower or any of its Subsidiaries, the Declaration of Trust, or Certificates or Articles of Incorporation or Bylaws of Borrower or any of its Subsidiaries or any order, judgment or decree of any court or other agency of government binding on Borrower or any of its Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any contractual obligation of Borrower or any of its Subsidiaries, (iii) result in or require the creation or imposition of any Lien upon any of the properties or assets of Borrower or any of its Subsidiaries, or (iv) require any approval of stockholders or any approval or consent of any Person under any contractual obligation of Borrower or any of its Subsidiaries, except for such approvals or consents which will be obtained on or before the date hereof. D. Governmental Consents. The execution and delivery by Borrower and Guarantors of this Amendment and the performance by Borrower and Guarantors of the Amended Agreement do not and will not require any registration with, consent or approval of, or notice to, or other action to, with or by, any federal, state or other governmental authority or regulatory body. E. Binding Obligation. This Amendment and the Amended Agreement have been duly executed and delivered by Borrower and each Guarantor and are the legally valid and binding obligations of Borrower and Guarantors against Borrower and each Guarantor in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limited creditors' rights generally or by equitable principles relating to enforceability. F. Incorporation of Representations and Warranties From Credit Agreement. The representations and warranties contained in Article 5 of the Credit Agreement are and will be true, correct and complete in all material respects on and as of the date hereof and to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in which case they were true, correct and complete in all material respects on and as of such earlier date. G. Absence of Default. No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment that would constitute a Default or an Event of Default. Section 4. ACKNOWLEDGEMENT AND CONSENT Each Guarantor hereby acknowledges that it has reviewed the terms and provisions of the Credit Agreement and this Amendment and consents to the amendment of the Credit Agreement 5 effected pursuant to this Amendment. Each Guarantor hereby confirms that it will continue to guaranty to the fullest extent possible the full and punctual payment of the principal and interest (including, without limitation, interest which, but for the filing of a petition in bankruptcy with respect to Borrower would accrue hereunder) on all Loans made to Borrower and the full and punctual payment of all other amounts payable by Borrower under the Credit Agreement (including amounts that would become due but for the operation of the automatic stay under Section 362(e) of the United States Bankruptcy Code) subject to the limitations expressly set forth in the Guaranty. Each Guarantor acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Amendment, such Guarantor is not required by the terms of the Credit Agreement or any other Credit Document to consent to the amendments to the Credit Agreement effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this Amendment or any other Credit Document shall be deemed to require the consent of such Guarantor to any future amendments to the Credit Agreement. Section 5. CONSENT TO CERTAIN AFFILIATE LESSEES. Agent hereby confirms to Borrower its approval (as contemplated by the definition of Lessee set forth in Section 1.1 of the Credit Agreement) of Subsidiaries of the Borrower becoming the Lessees (whether under a lease or sublease) of (i) certain Hotels pursuant to the 2001 Acquisition, and (ii) Hotels purchased following the 2001 Acquisition for an aggregate consideration not to exceed the cash received in partial consideration for the 2001 Acquisition; provided, that Borrower is in compliance with Section 7.1(k) and, in each case, the Lease and the Lessee meet the conditions set forth in clause (ii) of the proviso to clause (b) of the definition of "Permitted Ancillary Business". Section 6. MISCELLANEOUS 6.1 Reference to and Effect on the Credit Agreement and the Other Credit Documents. A. On and after the Effective Date, each reference in the Credit Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of the like import referring to the Credit Agreement, and each reference in the other Credit Documents to the "Credit Agreement," "thereunder," "thereof" or words of like import referring to the Credit Agreement shall mean and be a reference to the Amended Agreement. B. Except as specifically amended or waived by this Amendment, the Credit Agreement and the other Credit Documents shall remain in full force and effect and are hereby ratified and confirmed. C. The execution, delivery and performance of this Amendment shall not, except as expressly provided herein, constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of Agent or any Lender under, the Credit Agreement or any of the other Credit Documents. 6 6.2 Fees and Expenses. Borrower acknowledges that all costs, fees and expenses as described in Section 10.11 of the Credit Agreement incurred by Agent and its counsel with respect to this Amendment and the documents and transactions contemplated hereby shall be for the account of Borrower. 6.3 Headings. Sections and subsection heading in this Amendment are included herein for convenience of reference only and shall not constitute a part of this amendment for any other purpose or be given any substantive effect. 6.4 Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS OF LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. 6.5 Counterparts; Effectiveness. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. This Amendment shall become effective upon (i) the execution of a counterpart hereof by Borrower, Agent and Required Lenders, and receipt by Borrower and Agent of written or telephonic notification of such execution and authorization of delivery thereof, (ii) the payment by Borrower to Agent for its own account of a non-refundable amendment fee in immediately available funds in the amount separately agreed between Borrower and Agent and (iii) the payment by Borrower to Agent, for distribution to the Lenders that have executed this Amendment, of a non-refundable amendment fee in immediately available funds in an amount equal to 0.05% of each such Lender's Commitment. 6.6 Non-Liability of Trustees. THE DECLARATION OF TRUST ESTABLISHING BORROWER, DATED MAY 12, 1995, A COPY OF WHICH, TOGETHER WITH ALL AMENDMENTS THERETO (THE "DECLARATION"), IS DULY FILED WITH THE DEPARTMENT OF ASSESSMENTS AND TAXATION OF THE STATE OF MARYLAND, PROVIDES THAT THE NAME "HOSPITALITY PROPERTIES TRUST" REFERS TO THE TRUSTEES UNDER THE DECLARATION COLLECTIVELY AS TRUSTEES, BUT NOT INDIVIDUALLY OR PERSONALLY, AND THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF BORROWER SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, BORROWER. ALL PERSONS DEALING WITH BORROWER, IN ANY WAY, SHALL LOOK ONLY TO THE ASSETS OF BORROWER FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION. 7 IN WITNESS WHEREOF, the parties hereto have caused this amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above. HOSPITALITY PROPERTIES TRUST By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer and CFO DRESDNER BANK AG, New York Branch and Grand Cayman Branch, as Agent and as a Lender By: /s/ Michael Seton Name: Michael Seton Title: Vice President By: /s/ David Sarner Name: David Sarner Title: Assistant Treasurer ALLIED IRISH BANKS, P.L.C., as a Lender By: /s/ Brian Oliver Name: Brian Oliver Title: Senior Vice President By: /s/ Germaine Reusch Name: Germaine Reusch Title: Vice President S-1 BANK HAPOALIM B.M., as a Lender By: ----------------------------------------- Name: Title: By: ----------------------------------------- Name: Title: BANK OF MONTREAL, as a Lender By: /s/ Thomas A Batterham Name: Thomas A. Batterham Title: Director BANK ONE, NA, as a Lender By: /s/ Patricia Leung Name: Patricia Leung Title: Senior Vice President BW BANK IRELAND PLC, as a Lender By: /s/ Sinead O'Hara Name: Sinead O'Hara Title: Portfolio Management Director By: /s/ Roger Coen Name: Roger Coen Title: Manager, Portfolio Management S-2 CIBC INC., as a Lender By: /s/ Dean J. Decker Name: Dean J. Decker Title: Executive Director COMMERZBANK AG, New York Branch, as a Lender By: ---------------------------------------- Name: Title: By: ---------------------------------------- Name: Title: ERSTE BANK, as a Lender By: /s/ Paul Judicke Name: Paul Judicke Title: Vice President By: /s/ John Fay Name: John Fay Title: Vice President PNC BANK, NATIONAL ASSOCIATION, as a Lender By: /s/ Randall S. Cornelius Name: Randall S. Cornelius Title: Assistant Vice President S-3 RIGGS BANK N.A., as a Lender By: /s/ Douglas H. Klamfoth Name: Douglas H. Klamfoth Title: Vice President RZB FINANCE LLC, as a Lender By: /s/ John A. Valiska Name: John A. Valiska Title: Vice President By: /s/ Dieter Beintrexler Name: Dieter Beintrexler Title: President SOCIETE GENERALE, Southwest Agency, as a Lender By: /s/ Carina T. Huynh Name: Carina T. Huynh Title: Vice President By: --------------------------------------- Name: Title: S-4 WESTDEUTSCHE LANDESBANK GIROZENTRALE, as a Lender By: ---------------------------------------- Name: Title: By: ---------------------------------------- Name: Title: S-5 For the purposes of Section 4: HPT CW PROPERTIES TRUST By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer and CFO HPTCY PROPERTIES TRUST By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer and CFO HPTMI PROPERTIES TRUST (successor by merger with HPTMI Corporation) By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer and CFO HPTMI II PROPERTIES TRUST By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer HPTSHC PROPERTIES TRUST By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer HPT SUITE PROPERTIES TRUST By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer S-6 HPTRI PROPERTIES TRUST (successor by merger with HPTRI Corporation) By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer HPTWN PROPERTIES TRUST (successor by merger with HPTSLC Properties Trust) By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer HPT CW II PROPERTIES TRUST By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer HPT MI III PROPERTIES TRUST By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer HPT HSD PROPERTIES TRUST By: /s/ Thomas M. O'Brien Name: Thomas M. O'Brien Title: Treasurer S-7 EX-12.1 8 0008.txt
EXHIBIT 12.1 Hospitality Properties Trust Computation of Ratio of Earnings to Fixed Charges (in thousands, except ratio amounts) For the Year Ended December 31, ----------------------------------------------------------------------- 2000 1999 1998 1997 1996 ---- ---- ---- ---- ---- Income Before Extraordinary Item $126,271 $111,929 $87,982 $59,153 $51,664 Fixed Charges 37,682 37,352 21,751 15,534 5,646 --------- --------- ----------- --------- --------- Adjusted Earnings $163,953 $149,281 $109,733 $74,687 $57,310 Fixed Charges: Interest on indebtedness and amortization of deferred finance costs $37,682 $37,352 $21,751 $15,534 $5,646 Ratio of Earnings to Fixed Charges 4.35x 4.00x 5.04x 4.81x 10.15x
EX-12.2 9 0009.txt
EXHIBIT 12.2 Hospitality Properties Trust Computation of Ratio of Earnings to Combined Fixed Charges and Preferred Distributions (in thousands, except ratio amounts) For the Years Ended December 31, ------------------------------------------------------------------------- 2000 1999 1998 1997 1996 ---- ---- ---- ---- ---- Income Before Extraordinary Item $126,271 $111,929 $87,982 $59,153 $51,664 Fixed Charges 37,682 37,352 21,751 15,534 5,646 ---------- ---------- --------- -------- --------- Adjusted Earnings $163,953 $149,281 $109,733 $74,687 $57,310 Fixed Charges and Preferred Distributions: Interest on indebtedness and amortization of deferred finance costs $37,682 $37,352 $21,751 $15,534 $5,646 Preferred distributions 7,125 5,106 -- -- -- ---------- ---------- --------- --------- -------- Total Combined Fixed Charges And Preferred Distributions $44,807 $42,458 $21,751 $15,534 $5,646 Ratio of Earnings to Combined Fixed Charges and Preferred Distributions 3.66x 3.52x 5.04x 4.81x 10.15x
EX-21.1 10 0010.txt EXHIBIT 21.1 HOSPITALITY PROPERTIES TRUST SUBSIDIARIES OF THE REGISTRANT HH HPTCW II Properties LLC (Delaware) HH HPTCY Properties LLC (Delaware) HH HPTMI II Properties LLC (Delaware) HH HPTMI III Properties LLC (Delaware) HH HPTRI Properties LLC (Delaware) HH HPT Suite Properties LLC (Delaware) HH HPTWN Properties LLC (Delaware) HPT CW Properties Trust (Maryland) HPT CW II Properties Trust (Maryland) HPTCY Properties Trust (Maryland) HPT HSD Properties Trust (Maryland) HPTMI Properties Trust (Maryland) HPTMI II Properties Trust (Maryland) HPTMI III Properties Trust (Maryland) HPTRI Properties Trust (Maryland) HPTSHC Properties Trust (Maryland) HPT Smokey Mountain LLC (Delaware) HPT Suite Properties Trust (Maryland) HPTSY Properties Trust (Maryland) HPT TRS, INC. (Delaware) HPTWN Properties Trust (Maryland) EX-23.1 11 0011.txt EXHIBIT 23.1 CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation of our reports on Hospitality Properties Trust, CCMH Courtyard I LLC and HMH HPT Courtyard LLC in this Form 10-K, into the Company's previously filed Registration Statements File Nos. 333-43573 and 333-89307. /s/ Arthur Andersen LLP Vienna, Virginia March 28, 2001 -----END PRIVACY-ENHANCED MESSAGE-----