Exhibit 4.23


 






 


DECLARATION
OF TRUST


 


HPT
CAPITAL TRUST II


 


DATED AS
OF AUGUST 26, 2009


 






 

















 


DECLARATION
OF TRUST


 


OF


 


HPT
CAPITAL TRUST II


 


AUGUST 26,
2009


 


DECLARATION OF TRUST (“Declaration”) dated
and effective as of August 26, 2009 by the initial Trustee (as defined
herein), the Sponsor (as defined herein), and by the holders, from time to
time, of undivided beneficial interests in the Trust to be issued pursuant to
this Declaration;


 


WHEREAS, the initial Trustee and the Sponsor desire
to establish a trust (the “Trust”) pursuant to the Business Trust Act (as
defined herein) for the purpose of issuing and selling certain securities
representing undivided beneficial interests in the assets of the Trust and
investing the proceeds thereof in certain Debt Securities of the Debt Security
Issuer (as defined herein);


 


NOW, THEREFORE, it being the intention of the
parties hereto that the Trust constitute a business trust under the Business
Trust Act and that this Declaration constitute the governing instrument of such
business trust, the initial Trustee declares that all assets contributed to the
Trust will be held in trust for the exclusive benefit of the holders, from time
to time, of the securities representing undivided beneficial interests in the
assets of the Trust issued hereunder, subject to the provisions of this
Declaration.


 


ARTICLE I

DEFINITIONS


 


SECTION 1.1                      Definitions.


 


Unless the context otherwise requires:


 


(a)           Capitalized
terms used in this Declaration but not defined in the preamble above have the
respective meanings assigned to them in this Section 1.1;


 


(b)           a term defined
anywhere in this Declaration has the same meaning throughout;


 


(c)           all references
to “the Declaration” or “this Declaration” are to this
Declaration of Trust as modified, supplemented or amended from time to time;


 


(d)           all references
in this Declaration to Articles and Sections are to Articles and Sections of
this Declaration unless otherwise specified; and


 


(e)           a reference to
the singular includes the plural and vice versa.


 


“Affiliate” has the same meaning as given to
that term in Rule 405 of the Securities Act.


 


“Business Day” means any day other than a day
on which banking institutions in New York, New York or in Boston, Massachusetts
are authorized or required by law to close.


 

















 


“Business Trust Act” means Title 12 of the
Corporations and Associations Article of the Annotated Code of Maryland,
as it may be amended from time to time, or any successor legislation.


 


“Commission” means the Securities and
Exchange Commission.


 


“Common Securities” means securities
representing undivided beneficial ownership interests in the assets of the
Trust with such terms as may be set out in any amendment to this Declaration.


 


“Covered Person” means (a) any officer,
director, shareholder, partner, member, representative, employee or agent of (i) the
Trust or (ii) the Trust’s Affiliates and (b) any holder of
Securities.


 


“Debt Security Issuer” means the Parent in
its capacity as the issuer of the Debt Securities under the Indenture.


 


“Debt Securities” means the series of debt
securities to be issued by the Debt Security Issuer and acquired by the Trust.


 


“Exchange Act” means the Securities Exchange
Act of 1934, as amended from time to time, or any successor legislation.


 


“Fiduciary Indemnified Person” has the
meaning set forth in Section 4.3(b).


 


“Indemnified Person” means a Parent
Indemnified Person or a Fiduciary Indemnified Person.


 


“Indenture” means an indenture to be entered
into between the Parent and the Indenture Trustee and any indenture
supplemental thereto pursuant to which the Debt Securities are to be issued.


 


“Indenture Trustee” means the trustee under
the Indenture until a successor is appointed thereunder, and thereafter means
such successor trustee.


 


“Parent” means Hospitality Properties Trust,
a Maryland real estate investment trust, the parent of the Sponsor, or any
successor thereto.


 


“Parent Indemnified Person” means (a) any
Regular Trustee; (b) any Affiliate of any Regular Trustee; (c) any
officers, directors, shareholders, members, partners, employees,
representatives or agents of any Regular Trustee; or (d) any employee or
agent of the Trust or its Affiliates.


 


“Person” means a legal person, including any
individual, corporation, real estate investment trust, business trust, estate,
partnership, joint venture, association, joint stock company, limited liability
company, trust, unincorporated association, or government or any agency or
political subdivision thereof, or any other entity of whatever nature.


 


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“Preferred Securities” means securities
representing undivided beneficial ownership interests in the assets of the
Trust with such terms as may be set out in any amendment to this Declaration.


 


“Property Trustee” has the meaning set forth
in Section 3.3.


 


“Regular Trustee” means any Trustee other
than the Property Trustee (as hereinafter defined).


 


“Securities” means the Common Securities and
the Preferred Securities.


 


“Securities Act” means the Securities Act of
1933, as amended from time to time, or any successor legislation.


 


“Sponsor” means HPT Capital Holdings, a
Maryland business trust.


 


“Trustee” or “Trustees” means each
Person who has signed this Declaration as a trustee, so long as such Person
shall continue in office in accordance with the terms hereof, and all other
Persons who may from time to time be duly appointed, qualified and serving as
Trustees in accordance with the provisions hereof, and references herein to a
Trustee or the Trustees shall refer to such Person or Persons solely in their
capacity as trustees hereunder.


 


ARTICLE II

ORGANIZATION


 


SECTION 2.1                      Name.


 


The name of the Trust is “HPT CAPITAL TRUST II.” The
Trust’s activities may be conducted under the name of the Trust or any other
name deemed advisable by the Regular Trustees.


 


SECTION 2.2                      Office.


 


The address of the principal office of the Trust is
c/o Hospitality Properties Trust, 400 Centre Street, Newton, Massachusetts
02458.  At any time, the Regular Trustees
may designate another principal office. 
The address of the Maryland office of the Trust is c/o CSC-Lawyers
Incorporating Service Company, 7 St. Paul Street, Suite 1660, Baltimore,
Maryland 21202.


 


SECTION 2.3                      Resident Agent.


 


The name of the resident agent of the Trust in the
State of Maryland is CSC-Lawyers Incorporating Service Company, 7 St. Paul
Street, Suite 1660, Baltimore, Maryland 21202.  The resident agent is a Maryland
corporation.  At any time, the Regular
Trustees may designate by written notice to the Sponsor another resident agent
who is a citizen of and resides in the State of Maryland or which is a Maryland
corporation.


 


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SECTION 2.4                      Purpose.


 


It is the intention of the
parties hereto that the Trust constitute a business trust under the Business
Trust Act, and that this Declaration constitute the governing instrument of the
Trust.  The Trust is hereby established
by the Sponsor and the Trustees for the purposes of (i) issuing Preferred
Securities and investing the proceeds thereof in Debt Securities, (ii) issuing
and selling Common Securities to the Sponsor in exchange for cash and investing
the proceeds thereof in additional Debt Securities and (iii) engaging in
such other activities as are necessary, convenient or incidental thereto.  The Trust shall not borrow money, issue debt
or reinvest proceeds derived from investments, pledge any of its assets, or
otherwise undertake (or permit to be undertaken) any activity that would cause
the Trust not to be classified for United States federal income tax purposes as
a grantor trust.


 


Concurrent with the first issuance of any Securities
by the Trust, the Sponsor and the Trustees intend to enter into an amended and
restated Declaration of Trust or Trust Agreement, satisfactory to each such
party and substantially in the form included as an exhibit to the Securities
Act Registration Statement referred to below at the time such registration
statement becomes effective under the Securities Act, to provide for the
contemplated operation of the Trust and the issuance of the Preferred
Securities and the Common Securities referred to therein.  Prior to the execution and delivery of such
amended and restated Declaration of Trust or Trust Agreement, the Trustees
shall not have any duty or obligation hereunder or with respect to the trust
estate, except as otherwise required by applicable law or, in the case of the
Regular Trustees, as may be necessary to obtain, prior to such execution and
delivery, any licenses, consents or approvals required by applicable law or
otherwise.


 


SECTION 2.5                      Authority.


 


Subject to the limitations provided in this
Declaration, the Regular Trustees shall have exclusive and complete authority
to carry out the purposes of the Trust. 
An action taken by the Regular Trustees in accordance with their powers
shall constitute the act of and serve to bind the Trust.  In dealing with the Regular Trustees acting
on behalf of the Trust, no Person shall be required to inquire into the
authority of the Regular Trustees to bind the Trust.  Persons dealing with the Trust are entitled
to rely conclusively on the power and authority of the Regular Trustees as set
forth in this Declaration.


 


SECTION 2.6                      Title to Property of the
Trust.


 


Legal title to all assets of the Trust shall be
vested in the Trust.


 


SECTION 2.7                      Powers of the Trustees.


 


The Regular Trustees shall have the exclusive power
and authority to cause the Trust to engage in the following activities:


 


(a)           to issue and
sell the Preferred Securities and the Common Securities in accordance with this
Declaration; provided, however, that the Trust may issue no more than one
series of Preferred Securities and no more than one series of Common
Securities, and, provided further, that there shall be no interests in the
Trust other than the 


 


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Securities
and the issuance of the Securities shall be limited to a one-time, simultaneous
issuance of both Preferred Securities and Common Securities;


 


(b)           in connection
with the issue and sale of the Preferred Securities, at the direction of the
Sponsor, to:


 


(i)            execute and
file with the Commission a registration statement on Form S-3 prepared by
the Sponsor (the “Registration Statement”), including any amendments
thereto in relation to the registration of the Preferred Securities under the
Securities Act;


 


(ii)           execute and
file any documents prepared by the Sponsor, or take any acts as determined by
the Sponsor to be necessary in order to qualify or register all or part of the
Preferred Securities in any State in which the Sponsor has determined to
qualify or register such Preferred Securities for sale;


 


(iii)          execute and
file on behalf of the Trust, with the New York Stock Exchange or any other
national stock exchange for listing or quotation upon notice of issuance of any
Preferred Securities a listing application and all other applications,
statements, certificates, agreements and other instruments as shall be
necessary or desirable to cause the Preferred Securities to be listed on such
exchange or national market, as the case may be;


 


(iv)          execute and
file with the Commission a registration statement on Form 8-A, including
any amendments thereto, prepared by the Sponsor relating to the registration of
the Preferred Securities under Section 12(b) or 12(g) of the
Exchange Act, if the Sponsor in its sole discretion determines that such a
filing is necessary or appropriate; and


 


(v)           negotiate the
terms of, and execute and enter into, on behalf of the Trust, an underwriting
agreement and pricing agreement providing for the sale of the Preferred
Securities.


 


(c)           to employ or
otherwise engage employees and agents (who may be designated as officers with
titles) and managers, contractors, advisors and consultants and provide for
reasonable compensation for such services;


 


(d)           to incur
expenses that are necessary or incidental to carry out any of the purposes of
this Declaration; and


 


(e)           to execute all
documents or instruments, perform all duties and powers, and do all things for
and on behalf of the Trust in all matters necessary or incidental to the
foregoing.


 


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SECTION 2.8                      Filing of Certificate of
Trust.


 


On or prior to the date of execution of this
Declaration, the initial Trustee formed the Trust by filing the Certificate of
Trust in the form attached hereto as Exhibit A with the State
Department of Assessments and Taxation of Maryland.


 


SECTION 2.9                      Duration of Trust.


 


The Trust, absent termination pursuant to the
provisions of Section 5.2, shall have existence for forty (40) years from
the date hereof.


 


SECTION 2.10                    Responsibilities of the
Sponsor.


 


In connection with the issue and sale of the
Preferred Securities, the Sponsor shall have the exclusive right and
responsibility to engage in the following activities:


 


(a)           to prepare for
filing by the Trust with the Commission a registration statement on Form S-3
in relation to the Preferred Securities, including any amendments thereto;


 


(b)           to determine
the States in which to take appropriate action to qualify or register for sale
all or part of the Preferred Securities and to do any and all such acts, other
than actions which must be taken by the Trust, and advise the Trust of actions
it must take, and prepare for execution and filing of any documents to be
executed and filed by the Trust, as the Sponsor deems necessary or advisable in
order to comply with the applicable laws of any such States;


 


(c)           at the sole
discretion of the Sponsor, to prepare for filing by the Trust of an application
to the New York Stock Exchange or the Nasdaq Stock Market for listing or
quotation upon notice of issuance of any Preferred Securities;


 


(d)           to prepare for
filing by the Trust with the Commission a registration statement on Form 8-A
relating to the registration of the class of Preferred Securities under Section 12(b) or
12(g) of the Exchange Act, including any amendments thereto, if the
Sponsor in its sole discretion determines that such a filing is necessary or
appropriate; and


 


(e)           to negotiate
the terms of an underwriting agreement and pricing agreement providing for the
sale of the Preferred Securities.


 


SECTION 2.11                    Declaration Binding on
Securities Holders.


 


Every Person by virtue of having become a holder of
a Security or any interest therein in accordance with the terms of this
Declaration, shall be deemed to have expressly assented and agreed to the terms
of, and shall be bound by, this Declaration.


 


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ARTICLE III

TRUSTEES


 


SECTION 3.1                      Trustees.


 


The number of Trustees
initially shall be one (1), and thereafter the number of Trustees shall be such
number as shall be fixed from time to time by a written instrument signed by
the Sponsor.  The Sponsor is entitled to
appoint or remove without cause any Trustee at any time; provided, however,
that there shall be at least one trustee who is an employee or officer of, or
is affiliated with the Parent (a “Regular Trustee”).


 


SECTION 3.2                      Regular Trustees.


 


(a)           The initial
Regular Trustee shall be:


 


Barry
M.  Portnoy


 


(b)           Except as
expressly set forth in this Declaration, any power of the Regular Trustees may
be exercised by, or with the consent of, any one such Regular Trustee.


 


(c)           Unless
otherwise determined by the Regular Trustees, and except as otherwise required
by the Business Trust Act, any Regular Trustee is authorized to execute on
behalf of the Trust any documents that the Regular Trustees have the power and
authority to cause the Trust to execute pursuant to Section 2.7; and a
Regular Trustee may, by power of attorney consistent with applicable law,
delegate to any other natural person over the age of 21 his or her power for
the purposes of signing any documents that the Regular Trustees have power and
authority to cause the Trust to execute pursuant to Section 2.7.


 


SECTION 3.3                      Property Trustee.


 


Prior to the issuance of the Securities, the Sponsor
shall appoint another trustee (the “Property Trustee”) meeting the
requirements of an eligible trustee of the Trust Indenture Act of 1939, as
amended, by the execution of an amendment to this Declaration executed by the
Regular Trustees, the Sponsor and the Property Trustee.


 


Notwithstanding any other provision of this
Declaration, the Property Trustee shall not be entitled to exercise any of the
powers, nor shall the Property Trustee have any of the duties and
responsibilities of the Trustees described in this Declaration.  Notwithstanding anything herein to the
contrary, the Property Trustee shall not be liable for the acts or omissions to
act of the Trust or of the Regular Trustees except such acts as the Property
Trustee is expressly obligated or authorized to undertake under this
Declaration and except for the negligence or willful misconduct of the Property
Trustee.  The Property Trustee may resign
as a Trustee of the Trust by giving not less than 30 days written notice of
resignation to any Regular Trustee; provided, however that no such resignation
of the Property Trustee shall be effective until a successor Property Trustee
has been appointed and has accepted such appointment by instrument executed by
such successor Property Trustee and delivered to the Trust, the Sponsor and the
resigning Property Trustee.


 


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SECTION 3.4                      Not Responsible for Recitals
or Sufficiency of Declaration.


 


The recitals contained in this Declaration shall be
taken as the statements of the Sponsor, and the Trustees do not assume any
responsibility for their correctness. 
The Trustees make no representations as to the value or condition of the
property of the Trust or any part thereof. 
The Trustees make no representations as to the validity or sufficiency
of this Declaration.


 


ARTICLE IV

LIMITATION OF LIABILITY OF

HOLDERS OF SECURITIES, TRUSTEES OR OTHERS


 


SECTION 4.1                      Exculpation.


 


(a)           (i)  To
the maximum extent that Maryland law in effect from time to time permits
limitation of the liability of trustees and officers of a business trust, no
Regular Trustee or Property Trustee or officer of the Trust shall be liable to
the Trust or its beneficial owners for money damages.  Neither the amendment nor repeal of this Section 4.1(a),
nor the adoption of any other provision of this Declaration inconsistent with
this Section 4.1(a), shall apply to or affect in any respect the
applicability of the receding sentence with respect to any act or failure to
act which occurred prior to such amendment, repeal or adoption.


 


(ii)           Subject to Section 4.1(a)(i) of
this Declaration, no Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Trust or any Covered Person for any
loss, damage or claim incurred by reason of any act or omission performed or
omitted by such Indemnified Person in good faith on behalf of the Trust and in
a manner such Indemnified Person reasonably believed to be within the scope of
the authority conferred on such Indemnified Person by this Declaration or by
law, except that an Indemnified Person shall be liable for any such loss,
damage or claim incurred by reason of such Indemnified Person’s gross
negligence or willful misconduct with respect to such acts or omissions.


 


(b)           An Indemnified
Person shall be fully protected in relying in good faith upon the records of
the Trust and upon such information, opinions, reports or statements presented
to the Trust by any Person as to matters the Indemnified Person reasonably
believes are within such other Person’s professional or expert competence and
who has been selected with reasonable care by or on behalf of the Trust,
including information, opinions, reports or statements as to the value and
amount of the assets, liabilities, profits, losses, or any other facts
pertinent to the existence and amount of assets from which distributions to
holders of Securities might properly be paid.


 


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SECTION 4.2                      Duties.


 


(a)           To the extent
that, at law or in equity, an Indemnified Person has duties (including
fiduciary duties, if any) and liabilities relating thereto to the Trust or to
any other Covered Person, an Indemnified Person acting under this Declaration
shall not be liable to the Trust or to any other Covered Person for its good
faith reliance on the provisions of this Declaration.  The provisions of this Declaration, to the
extent that they restrict the duties and liabilities of an Indemnified Person
otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.


 


(b)           Unless
otherwise expressly provided herein:


 


(i)            whenever a
conflict of interest exists or arises between Covered Persons; or


 


(ii)           whenever this
Declaration or any other agreement contemplated herein or therein provides that
an Indemnified Person shall act in a manner that is, or provides terms that
are, fair and reasonable to the Trust or any holder of Securities, the
Indemnified Person shall resolve such conflict of interest, take such action or
provide such terms, considering in each case the relative interest of each
party (including its own interest) to such conflict, agreement, transaction or situation
and the benefits and burdens relating to such interests, any customary or
accepted industry practices, and any applicable generally accepted accounting
practices or principles.  In the absence
of bad faith by the Indemnified Person, the resolution, action or term so made,
taken or provided by the Indemnified Person shall not constitute a breach of
this Declaration or any other agreement contemplated herein or of any duty or
obligation of the Indemnified Person at law or in equity or otherwise.


 


(c)           Whenever in
this Declaration an Indemnified Person is permitted or required to make a
decision:


 


(i)            in its “discretion”
or under a grant of similar authority, the Indemnified Person shall be entitled
to consider such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to give any consideration to
any interest of or factors affecting the Trust or any other Person; or


 


(ii)           in its “good
faith” or under another express standard, the Indemnified Person shall act
under such express standard and shall not be subject to any other or different
standard imposed by this Declaration or by applicable law.


 


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SECTION 4.3                      Indemnification.


 


(a)           (i)  The Sponsor shall,
to the maximum extent permitted by Maryland law, indemnify, and pay or
reimburse reasonable expenses in advance of final disposition of a proceeding
to, any Parent Indemnified Person from all claims and liabilities to which such
person may become subject or which such person may incur by reason of his
status of a present or former Parent Indemnified Person.


 


(ii)           Expenses
(including attorneys’ fees) incurred by a Parent Indemnified Person in
defending a proceeding referred to in paragraph (i) of this Section 4.3(a) shall
be paid by the Sponsor in advance of the final disposition of such proceeding
upon receipt of an undertaking by or on behalf of such Parent Indemnified
Person to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Sponsor as authorized in this Section 4.3(a).  Notwithstanding the foregoing, no advance
shall be made by the Sponsor if a determination is reasonably and promptly made
(i) by the Regular Trustees by a majority vote of a quorum of disinterested
Regular Trustees, (ii) if such a quorum is not obtainable, or, even if
obtainable, if a quorum of disinterested Regular Trustees so directs, by
independent legal counsel in a written opinion or (iii) by the holder(s) of
the Common Securities of the Trust, that, based upon the facts known to the
Regular Trustees, independent legal counsel or the holder(s) of the Common
Securities of the Trust at the time such determination is made, such Parent
Indemnified Person acted in bad faith or in a manner that such Person did not
believe to be in or not opposed to the best interests of the Trust, or, with
respect to any criminal proceeding, that such Parent Indemnified Person
believed or had reasonable cause to believe his conduct was unlawful.  In no event shall any advance be made in
instances where the Regular Trustees, independent legal counsel or the holder(s) of
the Common Securities of the Trust reasonably determine that such Person
deliberately breached his duty to the Trust or to the holder(s) of its
Common Securities or Preferred Securities.


 


(iii)          The
indemnification and advancement of expenses provided by, or granted pursuant
to, the other paragraphs of this Section 4.3(a) shall not be deemed
exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of
shareholders or disinterested directors of the Sponsor or of the holder(s) of
the Preferred Securities of the Trust or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office.  All rights to indemnification
under this Section 4.3(a) shall be deemed to be provided by a
contract between the Sponsor and each Parent Indemnified Person who serves in
such capacity at any time while this Section 4.3(a) is in
effect.  Any repeal or modification of
this Section 4.3(a) shall not affect any rights or obligations then
existing.


 


(iv)          The Sponsor or
the Trust may purchase and maintain insurance on behalf of any Person who is or
was a Parent Indemnified Person against any liability asserted against him and
incurred by him in any such capacity, or arising 


 


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out
of his status as such, whether or not the Sponsor would have the power to
indemnify him against such liability under the provisions of this Section 4.3(a).


 


(v)           For purposes of
this Section 4.3(a), references to “the Trust” shall include, in addition
to the resulting or surviving entity, any constituent entity (including any
constituent of a constituent) absorbed in a consolidation or merger, so that
any Person who is or was a director, trustee, officer or employee of such
constituent entity, or is or was serving at the request of such constituent
entity as a director, trustee, officer, employee or agent of another entity,
shall stand in the same position under the provisions of this Section 4.3(a) with
respect to the resulting or surviving entity as he would have with respect to
such constituent entity if its separate existence had continued.


 


(vi)          The
indemnification and advancement of expenses provided by, or granted pursuant
to, this Section 4.3(a) shall, unless otherwise provided when
authorized or ratified, continue as to a Person who has ceased to be a Parent
Indemnified Person and shall inure to the benefit of the heirs, executors and
administrators of such a Person.


 


(b)           The Sponsor
agrees to indemnify (i) the Property Trustee, (ii) any Affiliate of
the Property Trustee, and (iii) any officers, directors, stockholders,
members, partners, employees, representatives, nominees, custodians or agents
of the Property Trustee (each of the Persons in (i) through (iii) being
referred to as a “Fiduciary Indemnified Person”) for, and to hold each
Fiduciary Indemnified Person harmless against, any loss, liability or expense
incurred without negligence or bad faith on its part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses (including reasonable legal fees
and expenses) of defending itself against, or investigating, any claim or
liability in connection with the exercise or performance of any of its powers
or duties hereunder.  The provisions of
this Section 4.3(b) shall survive the termination of this Declaration
or the resignation or removal of the Property Trustee.


 


SECTION 4.4                      Outside Businesses.


 


Any Covered Person, the Sponsor and the Property
Trustee may engage in or possess an interest in other business ventures of any
nature or description, independently or with others, similar or dissimilar to
the business of the Trust, and the Trust and the holders of Securities shall
have no rights by virtue of this Declaration in and to such independent
ventures or the income or profits derived therefrom and the pursuit of any such
venture, even if competitive with the business of the Trust, shall not be
deemed wrongful or improper.  None of any
Covered Person, the Sponsor or the Property Trustee shall be obligated to
present any particular investment or other opportunity to the Trust even if
such opportunity is of a character that, if presented to the Trust, could be
taken by the Trust, and any Covered Person, the Sponsor and the Property
Trustee shall have the right to take for its own account (individually or as a
partner or fiduciary) or to recommend to others any such particular investment
or other opportunity.  Any Covered Person
and the Property Trustee may engage or be interested in any financial or other
transaction with the Sponsor or any Affiliate of the Sponsor, or may act as
depositary, trustee or agent for, or 


 


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may act on any committee or
body of holders of, securities or other obligations of the Sponsor or its
Affiliates.


 


ARTICLE V


AMENDMENTS, TERMINATION,
MISCELLANEOUS


 


SECTION 5.1                      Amendments.


 


At any time before the issue
of any Securities, this Declaration may be amended by, and only by, a written
instrument executed by all of the Regular Trustees and the Sponsor; provided,
however, that if the Property Trustee has been appointed and the amendment
affects the rights, powers, duties, obligations or immunities of the Property
Trustee, the amendment shall also be approved in writing by the Property
Trustee.


 


SECTION 5.2                      Termination of Trust.


 


(a)           The Trust shall
dissolve and be of no further force or effect:


 


(i)            upon the
bankruptcy of the Sponsor;


 


(ii)           upon the filing
of a certificate of dissolution or its equivalent with respect to the Sponsor
or the revocation of the Sponsor’s declaration of trust or of the Trust’s
certificate of trust;


 


(iii)          upon the entry
of a decree of judicial dissolution of the Sponsor, or the Trust; and


 


(iv)          before the
issue of any Securities, with the consent of all of the Regular Trustees and
the Sponsor; and


 


(b)           As soon as is
practicable after the occurrence of an event referred to in Section 5.2(a),
the Trustees shall file, after satisfaction of all liabilities of the Trust in
accordance with applicable law, a certificate of cancellation with the State Department
of Assessments and Taxation of Maryland and the Trust shall terminate.


 


SECTION 5.3                      Governing Law.


 


This Declaration and the rights of the parties
hereunder shall be governed by and interpreted in accordance with the laws of
the State of Maryland and all rights and remedies shall be governed by such
laws without regard to principles of conflict of laws.


 


SECTION 5.4                      Headings.


 


Headings contained in this Declaration are inserted
for convenience of reference only and do not affect the interpretation of this
Declaration or any provision hereof.


 


SECTION 5.5                      Successors and Assigns.


 


Whenever in this Declaration any of the parties
hereto is named or referred to, the 


 


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successors and assigns of
such party shall be deemed to be included, and all covenants and agreements in
this Declaration by the Sponsor and the Trustees shall bind and inure to the
benefit of their respective successors and assigns, whether or not so
expressed.


 


SECTION 5.6                      Partial Enforceability.


 


If any provision of this Declaration, or the
application of such provision to any Person or circumstance, shall be held
invalid, the remainder of this Declaration, or the application of such
provision to Persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.


 


SECTION 5.7                      Counterparts.


 


This Declaration may contain more than one
counterpart of the signature page and this Declaration may be executed by
the affixing of the signature of each of the Trustees to one of such
counterpart signature pages.  All of such
counterpart signature pages shall be read as though one, and they shall
have the same force and effect as though all of the signers had signed a single
signature page.


 


[Remainder of Page Intentionally Left Blank]


 


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IN WITNESS WHEREOF, the undersigned have caused
these presents to be executed as of the day and year first above written.


 


 


	
   

  	
  /s/
  Barry M. Portnoy

  
	
   

  	
  Barry
  M. Portnoy

  
	
   

  	
  Regular
  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  HPT
  CAPITAL TRUST HOLDINGS,

  
	
   

  	
  as
  Sponsor

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John G. Murray

  
	
   

  	
   

  	
  John G. Murray

  
	
   

  	
   

  	
  President

  



 

















 


EXHIBIT A


 


HPT
CAPITAL TRUST II


 


CERTIFICATE
OF TRUST


 


THIS IS TO CERTIFY THAT:


 


FIRST:  The undersigned trustee
hereby forms a business trust pursuant to the laws of the State of Maryland.


 


SECOND:  The name of the business trust (the “Trust”)
is:


 


HPT Capital Trust II


 


THIRD:  The address of the Trust’s principal office in
the State of Maryland is c/o CSC-Lawyers Incorporating Service Company, 7 St.
Paul Street, Suite 1660, Baltimore, Maryland 21202.


 


FOURTH:  The name and business address of the Trust’s
resident agent are CSC-Lawyers Incorporating Service Company, 7 St. Paul
Street, Suite 1660, Baltimore, Maryland 21202.


 


The undersigned, being the sole trustee of the
Trust, acknowledges under the penalties of perjury, that to the best of his
knowledge and belief, the facts stated herein are true.


 


[Remainder of Page Intentionally Left Blank]


 


A-1

















 


IN WITNESS WHEREOF, the undersigned trustee has
signed this Certificate of Trust this
           day of August,
2009.


 


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Barry M. Portnoy

  



 


A-2