EXHIBIT 4.24


 


FORM OF


 


AMENDED AND RESTATED


 


TRUST AGREEMENT


 


AMONG


 


HPT CAPITAL TRUST HOLDINGS


 


AS SPONSOR,


 


[                                                                                              ]


 


AS PROPERTY TRUSTEE,


 


AND


 


THE REGULAR TRUSTEES NAMED HEREIN


 


RELATING TO


 


HPT CAPITAL TRUST [      ]


 


DATED AS OF
[                                      ,
            ]


 


 

















 


Certain Sections of this Trust Agreement relating to Sections 310
through 318, inclusive, of the Trust Indenture Act of 1939:


 


	
  Trust Indenture

  	
   

  	
   

  
	
  Act
  Section

  	
   

  	
  Trust Agreement Section

  
	
   

  	
   

  	
   

  
	
  ss.310(a)(1)

  	
   

  	
  8.7

  
	
  (a)(2)

  	
   

  	
  8.7

  
	
  (a)(3)

  	
   

  	
  Not Applicable

  
	
  (a)(4)

  	
   

  	
  2.7

  
	
  (a)(5)

  	
   

  	
  8.7

  
	
  (b)

  	
   

  	
  8.8

  
	
  (c)

  	
   

  	
  Not Applicable

  
	
  ss.311(a)

  	
   

  	
  8.12

  
	
  (b)

  	
   

  	
  8.12

  
	
  (c)

  	
   

  	
  Not Applicable

  
	
  ss.312

  	
   

  	
  5.7

  
	
  ss.313(a)

  	
   

  	
  8.13

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  (c)

  	
   

  	
  8.13

  
	
  (d)

  	
   

  	
  8.13

  
	
  ss.314(a)

  	
   

  	
  8.14

  
	
  (b)

  	
   

  	
  Not Applicable

  
	
  (c)

  	
   

  	
  8.15

  
	
  (d)

  	
   

  	
  Not Applicable

  
	
  (e)

  	
   

  	
  1.1, 8.15

  
	
  ss.315(a)

  	
   

  	
  8.1, 8.3

  
	
  (b)

  	
   

  	
  8.2

  
	
  (c)

  	
   

  	
  8.1

  
	
  (d)

  	
   

  	
  8.1, 8.3

  
	
  (e)

  	
   

  	
  Not Applicable

  
	
  ss.316(a)

  	
   

  	
  6.1, 8.2

  
	
  (b)

  	
   

  	
  6.8

  
	
  (c)

  	
   

  	
  6.7

  
	
  ss.317(a)

  	
   

  	
  2.7, 8.1

  
	
  (b)

  	
   

  	
  5.9

  
	
  ss.318(a)

  	
   

  	
  10.10

  



 






NOTE:  This
reconciliation and tie shall not, for any purpose, be deemed to be part of the
Agreement.


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  1  DEFINED TERMS

  	
  1

  
	
   

  	
  SECTION 1.1
   Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  2  ESTABLISHMENT OF THE TRUST

  	
  10

  
	
   

  	
  SECTION 2.1
   Name

  	
  10

  
	
   

  	
  SECTION 2.2
   Principal Place of Business;
  Registered Agent

  	
  10

  
	
   

  	
  SECTION 2.3
   Organizational Expenses

  	
  10

  
	
   

  	
  SECTION 2.4
   Issuance of the Preferred Securities

  	
  10

  
	
   

  	
  SECTION 2.5
   Subscription and Purchase of Debt Securities;
  Issuance of the Common Securities

  	
  11

  
	
   

  	
  SECTION 2.6
   Declaration of Trust

  	
  11

  
	
   

  	
  SECTION 2.7
   Authorization to Enter into Certain
  Transactions

  	
  11

  
	
   

  	
  SECTION 2.8
   Assets of Trust

  	
  15

  
	
   

  	
  SECTION 2.9
   Title to Trust Property

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  3  PAYMENT ACCOUNT

  	
  15

  
	
   

  	
  SECTION 3.1
   Payment Account

  	
  15

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  4  DISTRIBUTIONS; REDEMPTION;
  EXCHANGE[; CONVERSION]

  	
  16

  
	
   

  	
  SECTION 4.1
   Distributions

  	
  16

  
	
   

  	
  SECTION 4.2
   Redemption

  	
  16

  
	
   

  	
  SECTION 4.3
   [Conversion/Reserved]

  	
  19

  
	
   

  	
  SECTION 4.4
   Special Event Exchange or Redemption

  	
  19

  
	
   

  	
  SECTION 4.5
   Subordination of Common Securities

  	
  21

  
	
   

  	
  SECTION 4.6
   Payment Procedures

  	
  22

  
	
   

  	
  SECTION 4.7
   Tax Returns and Reports

  	
  22

  
	
   

  	
  SECTION 4.8
   Payment of Taxes, Duties, Etc., of the
  Trust

  	
  22

  
	
   

  	
  SECTION 4.9
   Payments under Indenture

  	
  22

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  5  TRUST SECURITIES CERTIFICATES

  	
  22

  
	
   

  	
  SECTION 5.1
   Initial Ownership

  	
  22

  
	
   

  	
  SECTION 5.2
   The Trust Securities Certificates

  	
  22

  
	
   

  	
  SECTION 5.3
   Delivery of Trust Securities
  Certificates

  	
  23

  
	
   

  	
  SECTION 5.4
   Registration of Transfer and Exchange
  of Preferred Securities; Restrictions on Transfer

  	
  23

  
	
   

  	
  SECTION 5.5
   Mutilated, Destroyed, Lost or Stolen
  Trust Securities Certificates

  	
  24

  
	
   

  	
  SECTION 5.6
   Persons Deemed Securityholders

  	
  25

  
	
   

  	
  SECTION 5.7
   Access to List of Securityholders’
  Names and Addresses

  	
  25

  
	
   

  	
  SECTION 5.8
   Maintenance of Office or Agency

  	
  25

  
	
   

  	
  SECTION 5.9
   Appointment of Paying Agent

  	
  25

  
	
   

  	
  SECTION 5.10
   Ownership of Common Securities by
  Sponsor

  	
  26

  
	
   

  	
  SECTION 5.11
   Global Securities; Non-Global
  Securities, Common Securities Certificate

  	
  26

  
				



 


i

















 


	
   

  	
  SECTION 5.12
   Notices to Clearing Agency

  	
  27

  
	
   

  	
  SECTION 5.13
   Definitive Preferred Securities
  Certificates

  	
  28

  
	
   

  	
  SECTION 5.14
   Rights of Securityholders

  	
  28

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  6  ACT OF SECURITYHOLDERS; MEETINGS,
  VOTING

  	
  28

  
	
   

  	
  SECTION 6.1
   Limitations on Voting Rights

  	
  28

  
	
   

  	
  SECTION 6.2
   Notice of Meetings

  	
  30

  
	
   

  	
  SECTION 6.3
   Meetings of Preferred Securityholders

  	
  31

  
	
   

  	
  SECTION 6.4
   Voting Rights

  	
  31

  
	
   

  	
  SECTION 6.5
   Proxies, Etc.

  	
  31

  
	
   

  	
  SECTION 6.6
   Securityholder Action by Written
  Consent

  	
  31

  
	
   

  	
  SECTION 6.7
   Record Date for Voting and Other
  Purposes

  	
  32

  
	
   

  	
  SECTION 6.8
   Acts of Securityholders

  	
  32

  
	
   

  	
  SECTION 6.9
   Inspection of Records

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  7  REPRESENTATIONS AND WARRANTIES

  	
  33

  
	
   

  	
  SECTION 7.1
   Representations and Warranties of the
  Property Trustee

  	
  33

  
	
   

  	
  SECTION 7.2
   Representations and Warranties of
  Sponsor

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  8  THE TRUSTEES

  	
  34

  
	
   

  	
  SECTION 8.1
   Certain Duties and Representations

  	
  34

  
	
   

  	
  SECTION 8.2
   Notice of Defaults

  	
  36

  
	
   

  	
  SECTION 8.3
   Certain Rights of Property Trustee

  	
  38

  
	
   

  	
  SECTION 8.4
   Not Responsible for Recitals or
  Issuance of Securities

  	
  40

  
	
   

  	
  SECTION 8.5
   May Hold Securities

  	
  40

  
	
   

  	
  SECTION 8.6
   Compensation; Indemnity; Fees

  	
  41

  
	
   

  	
  SECTION 8.7
   Property Trustee Required; Eligibility
  of Trustees

  	
  41

  
	
   

  	
  SECTION 8.8
   Conflicting Interests

  	
  41

  
	
   

  	
  SECTION 8.9
   Resignation and Removal; Appointment
  of Successor

  	
  42

  
	
   

  	
  SECTION 8.10
   Acceptance of Appointment by Successor

  	
  43

  
	
   

  	
  SECTION 8.11
   Merger, Conversion, Consolidation or
  Succession to Business

  	
  44

  
	
   

  	
  SECTION 8.12
   Preferential Collection of Claims Against
  Sponsor or Trust

  	
  44

  
	
   

  	
  SECTION 8.13
   Reports by Property Trustee

  	
  44

  
	
   

  	
  SECTION 8.14
   Reports to the Property Trustee

  	
  44

  
	
   

  	
  SECTION 8.15
   Evidence of Compliance with Conditions
  Precedent

  	
  44

  
	
   

  	
  SECTION 8.16
   Number of Trustees

  	
  44

  
	
   

  	
  SECTION 8.17
   Delegation of Power

  	
  45

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  9  DISSOLUTION, LIQUIDATION AND MERGER

  	
  45

  
	
   

  	
  SECTION 9.1
   Dissolution upon Expiration Date

  	
  45

  
	
   

  	
  SECTION 9.2
   Early Dissolution

  	
  45

  
	
   

  	
  SECTION 9.3
   Dissolution

  	
  46

  
	
   

  	
  SECTION 9.4
   Liquidation

  	
  46

  
	
   

  	
  SECTION 9.5
   Mergers, Consolidations, Amalgamations
  or Replacements of the Trust

  	
  47

  



 


ii

















 


	
  ARTICLE
  10  MISCELLANEOUS PROVISIONS

  	
  48

  
	
   

  	
  SECTION 10.1
   Limitation of Rights of
  Securityholders

  	
  48

  
	
   

  	
  SECTION 10.2
   Amendment

  	
  48

  
	
   

  	
  SECTION 10.3
   Separability

  	
  50

  
	
   

  	
  SECTION 10.4
   Governing Law

  	
  50

  
	
   

  	
  SECTION 10.5
   Payments Due on Non-Business Day

  	
  50

  
	
   

  	
  SECTION 10.6
   Successors

  	
  50

  
	
   

  	
  SECTION 10.7
   Headings

  	
  50

  
	
   

  	
  SECTION 10.8
   Reports, Notices and Demands

  	
  50

  
	
   

  	
  SECTION 10.9
   Agreement Not to Petition

  	
  51

  
	
   

  	
  SECTION 10.10
   Trust Indenture Act, Conflict with
  Trust Indenture Act

  	
  51

  
	
   

  	
  SECTION 10.11
   Acceptance of Terms of Trust
  Agreement, Guarantee and Indenture

  	
  51

  
	
   

  	
  SECTION 10.12
   Counterparts

  	
  52

  



 


	
  EXHIBIT
  A – Copy of Certificate of Trust

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  B – Form of Certificate Depositary Agreement

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  C – Form of Common Securities of HPT Capital Trust [        ]

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  D – Form of Preferred Securities of HPT Capital Trust [        ]

  	
   

  	
   

  



 


iii














 


AMENDED AND RESTATED
TRUST AGREEMENT, dated as of
[                              ]
among (i) HPT Capital Trust Holdings, a Maryland business trust (including
any successors or assigns, the “Sponsor”),
(ii) [                        ],
a
[                    ],
as property trustee (in such capacity, the “Property Trustee” and, in its
personal capacity and not in its capacity as Property Trustee, the “Bank”),
(iii) [[                        ],
an individual, and
[                          ],
an individual], each of whose address is c/o Hospitality Properties Trust, 400
Centre Street, Newton, Massachusetts 02458 (each, a “Regular Trustee” and,
collectively, the “Regular Trustees” and collectively with the Property
Trustee, the “Trustees”) and (iv) the several Holders as hereinafter
defined.


 


W I T N E S S E T H:


 


WHEREAS, certain of the
Trustees have heretofore duly formed a business trust pursuant to the Maryland
Business Trust Act by filing with the State Department of Assessments and
Taxation of Maryland the Certificate of Trust, filed on August 26, 2009,
attached as Exhibit A, and the Sponsor and certain of the Trustees entered
into that certain Declaration of Trust, dated as of August 26, 2009 (the
“Original Trust Agreement”), for the sole purpose of issuing and selling
certain securities representing undivided beneficial interests in the assets of
the Trust (as defined herein) and investing the proceeds thereof in the Debt
Securities (as defined herein); and


 


WHEREAS, the parties
hereto desire to amend and restate the Original Trust Agreement in its entirety
as set forth herein to provide for, among other things, (i) the issuance
and sale of the Common Securities (as defined herein) by the Trust to the
Sponsor, (ii) the issuance and sale of the Preferred Securities (as
defined herein) by the Trust pursuant to the Underwriting Agreement (as defined
herein) and (iii) the acquisition by the Trust from the Parent of all of
the right, title and interest in the Debt Securities;


 


NOW, THEREFORE, in
consideration of the agreements and obligations set forth herein and for other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, each party, for the benefit of the other parties and for the
benefit of the Holders of the Preferred Securities, hereby amends and restates
the Original Trust Agreement in its entirety and agrees as follows:


 


ARTICLE 1

DEFINED TERMS


 


SECTION 1.1         Definitions.  For all purposes of this Trust Agreement
except as otherwise expressly provided or unless the context otherwise
requires:


 


(a)           the terms defined in this
Article have the meanings assigned to them in this Article and
include the plural as well as the singular;


 


(b)           all other terms used herein that are
defined in the Trust Indenture Act, either directly or by reference therein,
have the meanings assigned to them therein;


 


(c)           unless the context otherwise
requires, any reference to an “Article” or a “Section” refers to an
Article or a Section, as the case may be, of this Trust Agreement; and


 


1

















 


(d)           the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Trust Agreement as
a whole and not to any particular Article, Section or other subdivision.


 


“Act” has the meaning
specified in Section 6.8(a).


 


“Additional Amount”
means, with respect to the Trust Securities, the amount of Additional Interest
(as defined in the Indenture), if any, paid by the Parent on the Debt
Securities.


 


“Additional Sums” means,
with respect to the Trust Securities, the amount of Additional Sums (as defined
in the Indenture), if any, paid by the Parent on the Debt Securities.


 


“Affiliate” of any
specified Person means any other Person directly or indirectly controlling or
controlled by or under direct or indirect common control with such specified
Person, provided, however that an Affiliate of the Sponsor or the Parent shall
be deemed not to include the Trust.  For
the purposes of this definition, “control” when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and
“controlled” have meanings correlative to the foregoing.


 


“Applicable Procedures”
means, with respect to any transfer or transaction involving a Global
Certificate or beneficial interest therein, the rules and procedures of
the Euroclear system, of Clearstream Banking, societe anonyme (or its
successor), and of the Clearing Agency for such security, in each case to the
extent applicable to such transaction and as in effect from time to time.


 


“Bank” has the meaning
specified in the preamble to this Trust Agreement.


 


“Bankruptcy Event” means,
with respect to any Person:


 


(a)           such Person, pursuant to or within
the meaning of any Bankruptcy Law (i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case, or (iii) consents to the appointment of a Custodian of
it or for all or substantially all of its property, or


 


(b)           a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that: (i) is for relief
against such Person in an involuntary case, (ii) appoints a Custodian of
such Person or for all or substantially all of its property, or
(iii) orders the liquidation of such Person, and the order or decree
remains unstayed and in effect for 90 days.


 


“Bankruptcy Laws” means
Title 11, United States Bankruptcy Code of 1978, as amended, or any similar United
States federal or state law relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors or any amendment
to, succession to or change in any such law.


 


“Board of Trustees” means
either the board of trustees of the Sponsor or any committee of that board duly
authorized to act hereunder.


 


2

















 


“Book-Entry Preferred
Securities Certificates” means a beneficial interest in the Preferred
Securities Certificates, ownership and transfers of which shall be made through
book entries by a Clearing Agency as described in Section 5.11.


 


“Business Day” means any
day other than a Saturday or Sunday or a day on which banking institutions in
New York, New York or in Boston, Massachusetts are authorized or required by
law or executive order to remain closed or a day on which the Corporate Trust
Office of the Property Trustee or the corporate trust office of the Indenture
Trustee, is closed for business.


 


“Certificate Depository Agreement”
means the agreement among the Trust, the Sponsor and The Depository Trust
Company, as the initial Clearing Agency dated as of the Closing Date, relating
to the Trust Securities Certificates substantially in the form attached as
Exhibit B, as the same may be amended and supplemented from time to time.


 


“Clearing Agency” means
an organization registered as a “clearing agency” pursuant to Section 17A
of the Securities Exchange Act of 1934, as amended, The Depository Trust
Company will be the initial Clearing Agency.


 


“Clearing Agency
Participant” means a broker, dealer, bank, other financial institution or other
Person for whom from time to time a Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency.


 


“Closing Date” means the
first Time of Delivery (as defined in the Underwriting Agreement), which date
is also the date of execution and delivery of this Trust Agreement.


 


“Commission” means the
Securities and Exchange Commission, as from time to time constituted, created
under the Securities Exchange Act of 1934, as amended, or, if at any time after
the execution of this instrument such Commission is not existing and performing
the duties now assigned to it under the Trust Indenture Act, then the body performing
such duties at such time.


 


“Common Securities
Certificate” means a certificate evidencing ownership of Common Securities,
substantially in the form attached as Exhibit C.


 


“Common Security” means
an undivided beneficial interest in the assets of the Trust, having a
Liquidation Amount with respect to the assets of the Trust of
$[          ] and having the
rights provided therefor in this Trust Agreement including the right to receive
Distributions and a Liquidation Distribution as provided herein.


 


“Common Stock” means
common shares of beneficial interest, $.01 par value per share, of the Parent.


 


“Corporate Trust Office”
means the principal corporate trust office of the Property Trustee at which at
any particular time its corporate trust business shall be administered, which
office at the date hereof is located at
[                            ],
[                          ]
Attention:
[                      ].


 


3

















 


“Debt Security Redemption
Date” means, with respect to any Debt Securities to be redeemed under the
Indenture, the date fixed for redemption thereof under the Indenture.


 


“Debt Securities” means
all of the Parent’s
$[                      ]
aggregate principal amount [name of series of Debt Securities] issued pursuant
to the Indenture.


 


“Definitive Preferred
Securities Certificates” means either or both (as the context requires) of
(x) Preferred Securities Certificates issued in certificated, fully
registered form as provided in Section 5.11(b) and (y) Preferred
Securities Certificates issued in certificated, fully registered form as
provided in Section 5.13.


 


“Direct Action” has the
meaning specified in Section 6.8(g).


 


“Distribution Date” has
the meaning specified in Section 4.1(a).


 


“Distributions” means
amounts payable in respect of the Trust Securities as provided in
Section 4.1.


 


“Early Dissolution Event”
has the meaning specified in Section 9.2.


 


“Event of Default” means
the occurrence of an Indenture Event of Default, whatever the reason for such
Indenture Event of Default and whether it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of
any court or any order, rule or regulation of any administrative or
governmental body.


 


“Exchange Agent” means
any exchange agent appointed pursuant to Section 4.4(h).


 


“Exchange Notice” has the
meaning specified in Section 4.4(b).


 


“Expiration Date” has the
meaning specified in Section 9.1.


 


“Global Certificate”
means a Preferred Security that is registered in the Securities Register in the
name of a Clearing Agency or a nominee thereof.


 


“Guarantee” means the
Guarantee Agreement executed and delivered by the Parent and
[                                            ],
[                        ],
and
[                                  ],
a [                                      ],
as guarantee trustee, contemporaneously with the execution and delivery of this
Trust Agreement, for the benefit of the Holders of the Preferred Securities, as
amended from time to time.


 


“Holder” means a Person
in whose name a Trust Securities Certificate representing a Trust Security is
registered, such Person being a beneficial owner within the meaning of the
Maryland Business Trust Act.


 


“Indenture” means the
Indenture, dated as of
[                                    ],
between the Parent and the Indenture Trustee, as supplemented by the
Supplemental Indenture No. [      ] 


 


4

















 


thereto, dated as of
[                  ],
as the same may be amended or supplemented from time to time.


 


“Indenture Event of
Default” means an “Event of Default” as defined in the Indenture.


 


“Indenture Trustee” means
[                  ],
[                  ],
as trustee under the Indenture.


 


“Investment Company
Event” means the receipt by the Property Trustee, on behalf of the Trust, of an
Opinion of Counsel, rendered by a law firm having a national tax and securities
practice (which Opinion of Counsel shall not have been rescinded by such law
firm), to the effect that, as a result of the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court, governmental agency or regulatory authority (a
“Change in 1940 Act Law”), there is more than an insubstantial risk that the
Trust is or will be considered an “investment company” that is required to be
registered under the 1940 Act, which Change in 1940 Act Law becomes effective
on or after the date of original issuance of the Preferred Securities under
this Trust Agreement.


 


“Lien” means any lien,
pledge, charge, encumbrance, mortgage, deed of trust, adverse ownership
interest, hypothecation, assignment, security interest or preference, priority
or other security agreement or preferential arrangement of any kind or nature
whatsoever.


 


“Liquidation Amount”
means an amount with respect to the assets of the Trust equal to
$[          ] per Trust
Security.


 


“Liquidation Date” means
each date on which Debt Securities or cash are to be distributed to Holders of
Trust Securities in connection with a dissolution and liquidation of the Trust
pursuant to Section 9.4(a).


 


“Liquidation
Distribution” has the meaning specified in Section 9.4(d).


 


“Maryland 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.


 


“1940 Act” means the
Investment Company Act of 1940, as amended.


 


“Officers’ Certificate”
means a certificate signed by the Chairman of the Board, a Vice Chairman of the
Board, the Chief Executive Officer, the Chief Operating Officer, the Chief
Financial Officer, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Controller, the Secretary or an Assistant Secretary,
of the Sponsor, and delivered to the Property Trustee.  Any Officers’ Certificate delivered with
respect to compliance with a condition or covenant provided for in this Trust
Agreement shall include:


 


(a)           a statement that each officer signing
the Officers’ Certificate has read the covenant or condition and the
definitions relating thereto; a brief statement of the nature and 


 


5

















 


scope of the examination or investigation undertaken
by each officer in rendering the Officers’ Certificate;


 


(b)           a statement that each officer has
made such examination or investigation as, in such officer’s opinion, is
necessary to enable such officer to express an informed opinion as to whether
or not such covenant or condition has been complied with; and


 


(c)           a statement as to whether, in the
opinion of each such officer, such condition or covenant has been complied
with.


 


“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for the Trust, the Property
Trustee or the Sponsor, and who may be an employee of any thereof, and who
shall be acceptable to the Property Trustee.


 


“Optional Redemption
Price” means with respect to the Preferred Securities (except as set forth
below with respect to redemption upon the occurrence of a Tax Event), the
following percentages of the Liquidation Amounts thereof, plus accumulated and
unpaid Distributions, if any, to the date fixed for redemption if redeemed
during the twelve-month period commencing [                    ]
in each of the following years indicated:


 


	
  Year

  	
   

  	
  Redemption
  Price

  	
   

  	
  Year

  	
   

  	
  Redemption
  Price

  	
   

  
	
  [                                ]

  	
   

  	
  [                                ]%

  	
   

  	
  [                                ]

  	
   

  	
   

  	
  [                                ]%

  	
   

  
	
  [                                ]

  	
   

  	
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In the event of a
redemption of Trust Securities upon the occurrence of a Tax Event, Trust
Securities shall be redeemed at the redemption price of
$[          ] per Trust
Security and all accumulated and unpaid Distributions, if any to the date fixed
for redemption.


 


“Original Trust
Agreement” has the meaning specified in the recitals to this Trust Agreement.


 


“Outstanding”, when used
with respect to Trust Securities, means, as of the date of determination, all
Trust Securities theretofore executed and delivered under this Trust Agreement,
except:


 


(a)           Trust Securities theretofore
cancelled by the Securities Registrar or delivered to the Securities Registrar
for cancellation or tendered for conversion;


 


6

















 


(b)           Trust Securities for whose payment or
redemption money in the necessary amount has been theretofore deposited with
the Property Trustee or any Paying Agent for the Holders of such Trust
Securities provided that, if such Trust Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Trust Agreement;


 


(c)           Trust Securities which have been
exchanged for Debt Securities pursuant to Section 4.4; and


 


(d)           Trust Securities which have been paid
or in exchange for or in lieu of which other Trust Securities have been
executed and delivered pursuant to Section 5.5;


 


provided, however, that
in determining whether the Holders of the requisite Liquidation Amount of the
Outstanding Trust Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Trust Securities owned by the
Sponsor, any Trustee or any Affiliate of the Sponsor any Trustee shall be
disregarded and deemed not to be Outstanding, except that (a) in
determining whether any Trustee shall be fully protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Trust Securities that a Responsible Officer of the Property Trustee, or an
individual Regular Trustee, as the case may be, actually knows to be so owned
shall be so disregarded and (b) the foregoing shall not apply at any time
when all of the Outstanding Trust Securities are owned by the Sponsor, one or
more of the Regular Trustees and/or any such Affiliate. Trust Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Securities Registrar the
pledgee’s right so to act with respect to such Trust Securities and that the
pledgee is not the Sponsor or any Affiliate of the Sponsor.


 


“Owner” means each Person
who is the beneficial owner of a Book-Entry Preferred Securities Certificate as
reflected in the records of the Clearing Agency or, if a Clearing Agency
Participant is not the Owner, then as reflected in the records of a Person
maintaining an account with such Clearing Agency (directly or indirectly, in
accordance with the rules of such Clearing Agency).


 


“Parent” means
Hospitality Properties Trust, a Maryland real estate investment trust and its
successors and assigns.


 


“Paying Agent” means any
paying agent or co-paying agent appointed pursuant to Section 5.9.


 


“Payment Account” means a
segregated non-interest bearing corporate trust account maintained by the
Property Trustee with the Bank in its trust department for the benefit of the
Securityholders in which all amounts paid in respect of the Debt Securities
will be held and from which the Property Trustee shall make payments to the
Securityholders in accordance with Section 4.1.


 


“Person” means any
individual, corporation, partnership, joint venture association, joint stock
company, trust, limited liability company, or corporation, unincorporated
organization or government or any agency or political subdivision thereof.


 


7

















 


“Preferred Securities
Certificate” means a certificate evidencing ownership of Preferred Securities,
substantially in the form attached as Exhibit D.


 


“Preferred Security”
means an undivided beneficial interest in the assets of the Trust, having a
Liquidation Amount with respect to the assets of the Trust of
$[          ] and having the
rights provided therefor in this Trust Agreement, including the right to
receive Distributions and a Liquidation Distribution as provided herein.


 


“Property Trustee” means
the commercial bank or trust company identified as the “Property Trustee” in
the preamble to this Trust Agreement solely in its capacity as Property Trustee
of the Trust and not in its individual capacity, or its successor in interest
in such capacity, or any successor property trustee appointed as herein
provided.


 


“Redemption Date” means,
with respect to any Trust Security to be redeemed, each Debt Security
Redemption Date.


 


“Redemption Price” means,
with respect to any Trust Security,
$[        ] per Trust Security, plus
accumulated and unpaid Distributions (including any Additional Sums) to the
date of redemption.


 


“Regular Trustee” means
each individual named as a Regular Trustee in the preamble to this Trust
Agreement, each solely in his capacity as Regular Trustee of the Trust and not
in his individual capacity, or such Regular Trustee’s successor in interest in
such capacity, or any successor in interest in such capacity, or any successor
Regular Trustee appointed as herein provided.


 


“Relevant Trustee” has
the meaning specified in Section 8.9(a).


 


“Responsible Officer”
when used with respect to the Property Trustee means the chairman or any
vice-chairman of the board of directors, the chairman or any vice-chairman of
the executive committee of the board of directors, the chairman of the trust
committee, the president, any vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Property Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.


 


“Securities Register” and
“Securities Registrar” have the respective meanings specified in
Section 5.4.


 


“Securityholder” or
“Holder” means a Person in whose name a Trust Security or Securities is
registered in the Securities Register; any such Person shall be deemed to be a
beneficial owner within the meaning of the Maryland Business Trust Act.


 


“Special Event” means a
Tax Event or an Investment Company Event.


 


“Sponsor” has the meaning
specified in the preamble to this Trust Agreement.


 


8

















 


“Successor Property
Trustee” has the meaning specified in Section 8.9(b).


 


“Successor Securities”
has the meaning specified in Section 9.5.


 


“Super Majority” has the
meaning specified in Section 8.2(c)(ii).


 


“Tax Event” means the
receipt by the Property Trustee, on behalf of the Trust, of an Opinion of
Counsel, rendered by a law firm having a national tax and securities practice
(which Opinion of Counsel shall not have been rescinded by such law firm), to
the effect that, as a result of any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations thereunder) of
the United States or any political subdivision, or taxing authority thereof or
therein affecting taxation, or as a result of any official administrative
pronouncement or judicial decision interpreting or applying such laws or
regulations, which amendment or change is effective or such pronouncement or
decision is announced on or after the date of issuance of the Preferred
Securities under this Trust Agreement and does not pertain to the use of the
proceeds of the issuance of the Debt Securities, there is more than an
insubstantial risk in each case after the date thereof that (a) the Trust
is, or will be within 90 days after the date thereof, subject to United States
federal income tax with respect to income received or accrued on the Debt
Securities, (b) interest payable by the Parent on the Debt Securities is
not, or will not be, within 90 days after the date thereof, deductible, in
whole or in part, for United States federal income tax purposes or (c) the
Trust is, or will be within 90 days after the date thereof, subject to more than
de minimus amount of other taxes, duties, assessments or other governmental
charges.


 


“Trust” means the
Maryland business trust continued hereby and identified on the cover
page of this Trust Agreement.


 


“Trust Agreement” means
this Amended and Restated Trust Agreement, the same may be modified, amended or
supplemented in accordance with the applicable provisions hereof, including all
exhibits hereto, including, for all purposes of this Trust Agreement and any
such modification, amendment or supplement, the provisions of the Trust
Indenture Act that are deemed to be a part of and govern this Trust Agreement
and any such modification, amendment or supplement, respectively.


 


“Trust Indenture Act”
means the Trust Indenture Act of 1939 as in force at the date as of which this
instrument was executed; provided, however, that in the event the Trust
Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means,
to the extent required by any such amendment, the Trust Indenture Act of 1939
as so amended.


 


“Trust Property” means
(a) the Debt Securities, (b) any cash on deposit in, or owing to, the
Payment Account and (c) all proceeds and rights in respect of the
foregoing to be held by the Property Trustee pursuant to the terms of this
Trust Agreement for the benefit of the Securityholders.


 


“Trust Security” means
any one of the Common Securities or the Preferred Securities.


 


9

















 


“Trust Securities
Certificate” means any one of the Common Securities Certificates, the Global
Certificates or the Definitive Preferred Securities Certificates.


 


“Trustees” means,
collectively, the Property Trustee and the Regular Trustees.


 


“Underwriting Agreement”
means the Underwriting Agreement, dated as of
[                    ],
[including the Pricing Agreement dated
[                          ]]
among [identify parties].


 


ARTICLE 2

ESTABLISHMENT OF THE TRUST


 


SECTION 2.1         The
name of the Trust is “HPT Capital Trust
[      ],” in which name the Trustees may conduct
the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued. 
The name of the Trust may be modified from time to time by the Regular
Trustees following written notice to the Holders of Trust Securities and the
other Trustees.


 


SECTION 2.2         Principal
Place of Business; Registered Agent.


 


(a)           The address of the principal office
of the Trust is c/o Hospitality Properties Trust, 400 Centre Street, Newton,
Massachusetts 02458 or such other address as the Regular Trustees may designate
by written notice to the Sponsor.  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.


 


(b)           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.


 


SECTION 2.3         Organizational
Expenses.  The Sponsor shall pay
organizational expenses of the Trust as they arise or shall, upon request of
any Trustee, promptly reimburse such Trustee for any such expenses paid by such
Trustee.  The Sponsor shall make no claim
upon the Trust Property for the payment of such expenses.


 


SECTION 2.4         Issuance
of the Preferred Securities.  On
[                      ]
the Sponsor on behalf of the Trust executed and delivered the Underwriting
Agreement.  Contemporaneously with the
execution and delivery of this Trust Agreement, a Regular Trustee, on behalf of
the Trust, shall execute in accordance with Section 5.2 and deliver to the
Underwriters named in the Underwriting Agreement Preferred Securities
Certificates, in an aggregate amount of
[                    ]
Preferred Securities having an aggregate Liquidation Amount of
$[                      ],
against receipt of the aggregate purchase price of such Preferred Securities of
$[                  ],
which amount the Regular Trustees shall promptly deliver, or cause to be
delivered, to the Property Trustee.


 


10














 


SECTION 2.5         Subscription
and Purchase of Debt Securities; Issuance of the Common Securities.  Contemporaneously with the execution and
delivery of this Trust Agreement, the Regular Trustees, on behalf of the Trust,
shall subscribe to and purchase from the Parent Debt Securities, registered in
the name of the Property Trustee (in its capacity as such) and having an
aggregate principal amount equal to
$[                  ],
and, in satisfaction of the purchase price for such Debt Securities, the
Property Trustee, on behalf of the Trust, shall deliver to the Parent the sum
of
$[                  ].  Contemporaneously therewith, a Regular
Trustee, on behalf of the Trust, shall execute in accordance with Section 5.2
and deliver to the Sponsor Common Securities Certificates registered in the
name of the Sponsor, in an aggregate amount of
[                  ]
Common Securities having an aggregate Liquidation Amount of $[                  ]
against receipt by the Property Trustee of the aggregate purchase price of such
Common Securities from the Sponsor of the sum of
$[                  ].


 


SECTION 2.6         Declaration
of Trust.  The exclusive purposes and
functions of the Trust are (a) to issue and sell Trust Securities and use
the proceeds from such sale to acquire the Debt Securities, (b) to
distribute the Trust’s income as provided in this Trust Agreement and (c) to
engage in only those other activities necessary or incidental thereto.  The Trust shall not borrow money, issue debt
or reinvest proceeds derived from investments, mortgage or 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.  The Sponsor
hereby appoints the Trustees as trustees of the Trust, to have all the rights,
powers and duties to the extent set forth herein, and the Trustees hereby
accept such appointment, subject the terms and conditions hereof.  The Property Trustee hereby declares that it
will hold the Trust Property in trust upon and subject to the conditions set
forth herein for the benefit of the Trust and the Securityholders.  The Regular Trustees shall have all rights,
powers and duties set forth herein and in accordance with applicable law with
respect to accomplishing the purposes of the Trust.


 


SECTION 2.7         Authorization
to Enter into Certain Transactions.


 


(a)           The
Trustees shall conduct the affairs of the Trust in accordance with the terms of
this Trust Agreement.  Subject to the
limitations set forth in Section 2.6 and paragraph (b) of this
Section, and in accordance with the following provisions (i) and (ii), the
Trustees shall have the exclusive power, duty and the authority to cause the
Trust to engage in the following activities:


 


(i)            As among the Trustees, each Regular
Trustee shall have the exclusive power and authority to act on behalf of the
Trust with respect to the following matters:


 


(A)          to issue and sell the Trust
Securities, 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
Trust Securities, and the issuance of Trust Securities shall be limited to
simultaneous issuance of both Preferred Securities and Common Securities on the
Closing Date and any other date Preferred Securities and Common Securities are
sold pursuant to the over-allotment option granted to the Underwriters named in
the Underwriting Agreement, subject to the 


 


11

















 


issuance of Trust
Securities pursuant to Section 5.5 and Successor Securities pursuant to Section 9.5;


 


(B)           to cause the Trust to enter into, and
to execute, deliver and perform on behalf of the Trust, the Certificate
Depository Agreement and such other agreements as may be necessary or
incidental to the purposes and function of the Trust;


 


(C)           to assist in the registration of the
Preferred Securities under the Securities Act of 1933, as amended, and under
state securities or blue sky laws, and the qualification of this Trust
Agreement as a trust indenture under the Trust Indenture Act;


 


(D)          to assist in the listing of the
Preferred Securities upon such securities exchange or exchanges, if any, as
shall be determined by the Sponsor and the registration of the Preferred
Securities under the Securities Exchange Act of 1934, as amended, and the
preparation and filing of all periodic and other reports and other documents
pursuant to the foregoing (only to the extent that such listing or registration
is requested by the Sponsor);


 


(E)           to appoint a Paying Agent, a
Securities Registrar and an authenticating agent in accordance with this Trust
Agreement;


 


(F)           unless otherwise required by the Maryland
Business Trust Act or the Trust Indenture Act, to execute on behalf of the
Trust (either acting alone or together with any other Regular Trustees) any
documents that the Regular Trustees have the power to execute pursuant to this
Trust Agreement;


 


(G)           to take any action incidental to the
foregoing as the Trustees may from time to time determine is necessary or
advisable to give effect to the terms of this Trust Agreement including, but
not limited to:


 


(i)         causing the Trust not to be deemed to
be an Investment Company required to be registered under the 1940 Act;


 


(ii)        causing the Trust to be classified for
United States federal income tax purposes as a grantor trust; and


 


(iii)       cooperating with the Sponsor to ensure
that the Debt Securities will be treated as indebtedness of the Parent for
United States federal income tax purposes;


 


provided that such action
does not adversely affect in any material respect the interests of
Securityholders except as otherwise provided in Section 10.2(a); and


 


(H)          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.


 


12

















 


(ii)           As among the Trustees, the Property
Trustee shall have the power, duty and authority to act on behalf of the Trust
with respect to the following matters:


 


(A)          the establishment of the Payment
Account;


 


(B)           the receipt of and taking title to
the Debt Securities;


 


(C)           the collection of interest, principal
and any other payments made in respect of the Debt Securities in the Payment
Account;


 


(D)          the distribution from the Trust
Property of amounts owed to the Securityholders in respect of the Trust
Securities;


 


(E)           the exercise of all of the rights,
powers and privileges of a holder of the Debt Securities;


 


(F)           the sending of notices of default,
other notices and other information regarding the Trust Securities and the Debt
Securities to the Securityholders in accordance with this Trust Agreement;


 


(G)           the distribution of the Trust
Property in accordance with the terms of this Trust Agreement;


 


(H)          to the extent provided in this Trust
Agreement, the winding up of the affairs of and liquidation of the Trust;


 


(I)            after an Event of Default of which a
Responsible Officer of the Property Trustee has knowledge, the taking of any
action incidental to the foregoing as the Property Trustee may from time to
time determine is necessary or advisable to give effect to the terms of this
Trust Agreement and protect and conserve the Trust Property for the benefit of
the Securityholders (without consideration of the effect of any such action on
any particular Securityholder);


 


(J)            subject to this Section 2.7(a)(ii),
the Property Trustee shall have none of the duties, liabilities, powers or the
authority of the Regular Trustees set forth in Section 2.7(a)(i) ;


 


(K)          to act as Paying Agent and/or
Securities Registrar to the extent appointed as such hereunder; and


 


(L)           the taking and holding of title to
Trust Property.


 


(b)           So
long as this Trust Agreement remains in effect, the Trust (or the Trustees
acting on behalf of the Trust) shall not undertake any business, activities or
transaction except as expressly provided herein or contemplated hereby.  In particular, notwithstanding anything in
this Trust Agreement to the contrary, the Trust shall not, and the Trustees
shall not and shall not cause the Trust to


 


13

















 


(i)            invest any proceeds received by the
Trust from holding the Debt Securities (rather, the Trustees shall distribute
all such proceeds to the Securityholders pursuant to the terms of this Trust
Agreement and the Trust Securities), acquire any investments or engage in any
activities not authorized by this Trust Agreement;


 


(ii)           sell, assign, transfer, exchange,
mortgage, pledge, set-off or otherwise dispose of any of the Trust Property or
interests therein, including to Securityholders, except as expressly provided
herein;


 


(iii)          take any action that would cause the
Trust to fail or cease to qualify as a “grantor trust” for United States
federal income tax purposes;


 


(iv)          make any loans or incur any
indebtedness for borrowed money or issue any other debt;


 


(v)           take or consent to any action that
would result in the placement of a Lien on any of the Trust Property;


 


(vi)          possess any power or otherwise act in
such a way as to vary the Trust assets or the terms of the Trust Securities in
any way whatsoever except as permitted by the terms of this Trust Agreement; or


 


(vii)         issue any securities or other evidences
of beneficial ownership of, or beneficial interest in, the Trust other than the
Trust Securities.  The Regular Trustees
shall defend all claims and demands of all Persons at any time claiming any
Lien on any of the Trust Property adverse to the interest of the Trust or the
Securityholders in their capacity as Securityholders.


 


(c)           In
connection with the issue and sale of the Preferred Securities, the Sponsor
shall have the right and responsibility to assist the Trust with respect to, or
effect on behalf of the Trust, the following actions (and any actions taken by
the Sponsor in furtherance of the following prior to the date of this Trust
Agreement are hereby ratified and confirmed in all respects):


 


(i)            to file by the Trust with the
Commission and to execute on behalf of the Trust a registration statement on
the appropriate form in relation to the Preferred Securities, including any
amendments thereto;


 


(ii)           to determine the states and foreign
jurisdictions in which to take appropriate action to qualify or register for
resale all or part of the Preferred Securities and to do any and all such acts,
other than actions which must be taken by or on behalf of the Trust, and advise
the Trustees of actions they must take on behalf of the Trust, and prepare for
execution and filing any documents to be executed and filed by the Trust or on
behalf of the Trust, as the Sponsor deems necessary or advisable in order to
comply with the applicable laws of any such states and foreign jurisdictions;


 


(iii)          to the extent necessary, to prepare
for filing by the Trust with the Commission and to execute on behalf of the
Trust a registration statement on Form 8-A 


 


14

















 


relating to the registration
of the Preferred Securities under Section 12(b) or 12(g) of the
Securities Exchange Act of 1934, as amended, including any amendments thereto
(it being understood that neither the Trust, the Sponsor nor the Parent has any
obligation under the Indenture, the Underwriting Agreement or the Trust
Agreement to register any Trust Securities under the Securities Exchange Act of
1934, as amended, or to list any Trust Securities on any securities exchange);


 


(iv)          to negotiate, and to execute and
deliver, on behalf of the Trust, the Underwriting Agreement; and


 


(v)           any other actions necessary or
incidental to carry out any of the foregoing activities.


 


(d)           Notwithstanding
anything herein to the contrary, the Regular Trustees are authorized and
directed to conduct the affairs of the Trust and to operate the Trust so that
the Trust will not be deemed to be an “investment company” required to be
registered under the 1940 Act, or taxed as a corporation for United States
federal income tax purposes and so that the Debt Securities will be treated as
indebtedness of the Parent for United States federal income tax purposes.  In this connection, the Sponsor and the
Regular Trustees are authorized to take any action, not inconsistent with
applicable law the Certificate of Trust or this Trust Agreement, that each of
the Sponsor and the Regular Trustees determines in their discretion to be
necessary or desirable for such purposes, so long as such action does not
adversely affect in any material respect the interests of the Holders of the
Preferred Securities except as otherwise provided in Section 10.2(a).


 


SECTION 2.8         Assets
of Trust.  The assets of the Trust shall
consist of only the Trust Property.


 


SECTION 2.9         Title
to Trust Property.  Legal title to all
Trust Property shall be vested at all times in the Property Trustee (in its
capacity as such) and shall be held and administered by the Property Trustee
for the benefit of the Trust and the Securityholders in accordance with this
Trust Agreement.  The Securityholders shall
not have legal title to any part of the assets of the Trust, but shall have an
undivided beneficial interest in the assets of the Trust.


 


ARTICLE 3

PAYMENT ACCOUNT


 


SECTION 3.1         Payment
Account.


 


(a)           On
or prior to the Closing Date, the Property Trustee shall establish the Payment
Account.  The Property Trustee and any
agent of the Property Trustee shall have exclusive control and sole right of
withdrawal with respect to the Payment Account for the purpose of making
deposits in and withdrawals from the Payment Account in accordance with this
Trust Agreement.  All monies and other
property deposited or held from time to time in the Payment Account shall be
held by the Property Trustee in the Payment Account for the exclusive benefit
of the Securityholders and for distribution as herein provided, including (and
subject to) any priority of payments provided for herein.


 


15

















 


(b)           The
Property Trustee shall deposit in the Payment Account promptly upon receipt,
all payments of principal of or interest on, and any other payments or proceeds
with respect to, the Debt Securities. 
Amounts held in the Payment Account shall not be invested by the
Property Trustee pending distribution thereof.


 


ARTICLE 4

DISTRIBUTIONS; REDEMPTION; EXCHANGE[; CONVERSION]


 


SECTION 4.1         Distributions.


 


(a)           Distributions
on the Trust Securities shall be cumulative, and shall accrue from the date of
original issuance, or the most recent Distribution Date (as defined herein)
and, except in the event that the Sponsor exercises its right to defer the
payment of interest on the Debt Securities pursuant to the Indenture, shall be
payable quarterly in arrears on each [describe payment dates] of each year,
commencing on [                    ]
(which dates correspond to the interest payment dates on the Debt Securities),
when, as and if available for payment by the Property Trustee, as further
described in paragraph (c) of this Section 4.1.  If any date on which Distributions are
otherwise payable on the Trust Securities is not a Business Day, then the
payment of such Distributions shall be made on the next succeeding day which is
a Business Day (and no interest shall accrue for the period from and after such
date until the next succeeding Business Day) with the same force and effect as
if made on such date (each date on which Distributions are payable in
accordance with this Section 4.1(a), a “Distribution Date”).


 


(b)           The
Trust Securities represent undivided beneficial interests in the Trust
Property, and the Distributions on the Trust Securities shall be payable at a
rate of [      ]% per annum of the Liquidation
Amount of the Trust Securities, such rate being the rate of interest payable on
the Debt Securities to be held by the Property Trustee.  The amount of Distributions payable for any
period shall be computed on the basis of a 360-day year of twelve 30-day
months.  For periods less than a full
month, Distributions shall reflect interest on Debt Securities computed on the
basis of the actual number of elapsed days based on 360-day year.  The amount of Distributions payable for any
period shall include the Additional Amounts, if any.


 


(c)           Distributions
on the Trust Securities shall be made by the Property Trustee from the Payment
Account and shall be payable on each Distribution Date only to the extent that
the Trust has funds then on hand and available in the Payment Account for the
payment of such Distributions.


 


(d)           Distributions
on the Trust Securities with respect to a Distribution Date shall be payable to
the Holders thereof as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be the date which is the
fifteenth day (whether or not a Business Day) next preceding such Distribution
Date.


 


SECTION 4.2         Redemption.


 


(a)           Upon
an optional redemption (as set forth in the Indenture) of Debt Securities, the
proceeds from such redemption shall be applied to redeem Trust Securities
having an aggregate Liquidation Amount equal to the aggregate principal amount of
the Debt Securities so redeemed by the Parent, including pursuant to Section 4.4,
at the Optional Redemption Price, 


 


16

















 


and
upon a mandatory redemption (as set forth in the Indenture) of Debt Securities,
the proceeds from such redemption shall be applied to redeem Trust Securities,
having an aggregate Liquidation Amount equal to the aggregate principal amount
of the Debt Securities so redeemed by the Parent, at the Redemption Price. The
Trust may not redeem fewer than all the Outstanding Trust Securities unless all
accrued and unpaid Distributions have been paid on all Trust Securities for all
quarterly Distribution periods terminating on or prior to the date of
redemption.


 


(b)           Notice
of redemption (which notice will be irrevocable) shall be given by the Property
Trustee by first-class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the Redemption Date to the Sponsor and each Holder of
Trust Securities to be redeemed, at such Holder’s address as it appears in the
Securities Register.  All notices of
redemption shall state:


 


(i)            the Redemption Date;


 


(ii)           the Redemption Price or the Optional
Redemption Price, as the case may be;


 


(iii)          the record date for the determination
of Holders entitled to receive payment of the Redemption Price or Optional
Redemption Price, as the case may be, as provided in Section 4.2(d);


 


(iv)          the CUSIP number;


 


(v)           if less than all of the Outstanding
Trust Securities are to be redeemed, the identification and the aggregate
Liquidation Amount of the particular Trust Securities to be redeemed;


 


(vi)          [the conversion price and that a
Holder of Preferred Securities who desires to convert such Preferred Securities
called for redemption must satisfy the requirements for conversion contained in
Section 4.3 below]; and


 


(vii)         that on the Redemption Date, the
Redemption Price or the Optional Redemption Price, as the case may be, will
become due and payable upon each such Trust Security to be redeemed and that
Distributions thereon will cease to accrue on and after said date; and the
place or places where such Trust Securities are to be surrendered for payment
of the Redemption Price or the Optional Redemption Price as the case may be.


 


(c)           The
Trust Securities redeemed on each Redemption Date shall be redeemed at the
Redemption Price or the Optional Redemption Price, as the case may be, with the
proceeds from the contemporaneous redemption of Debt Securities.  Redemptions of the Trust Securities shall be
made and the Redemption Price or the Optional Redemption Price, as the case may
be, shall be payable on each Redemption Date only to the extent that the Trust
has funds then on hand and available in the Payment Account for the payment of
such Redemption Price or the Optional Redemption Price, as the case may be.


 


17

















 


(d)           If
the Property Trustee gives a notice of redemption in respect of any Preferred
Securities, then, by 12:00 noon, New York City time, on the Redemption Date,
subject to Section 4.2(c), the Property Trustee will, so long as and to
the extent the Preferred Securities are in book-entry-only form, irrevocably
deposit with the Clearing Agency for the Preferred Securities funds sufficient
to pay the applicable Redemption Price. 
If the Preferred Securities are no longer in book-entry-only form, the
Property Trustee, subject to Section 4.2(c), will irrevocably deposit with
the Paying Agent funds sufficient to pay the applicable Redemption Price or
Optional Redemption Price, as the case may be, on such Preferred Securities
held in certificated form and will give the Paying Agent irrevocable
instructions and authority to pay the Redemption Price or the Optional
Redemption Price, as the case may be, to the Holders thereof upon surrender of
their Preferred Securities Certificates. 
Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the Holders of such Trust Securities as they appear on the Securities
Register for the Trust Securities on the relevant record dates for the related
Distribution Dates.  If notice of
redemption shall have been given and funds deposited as required, then, upon
the date of such deposit, all rights of Securityholders holding Trust
Securities so called for redemption will cease, except [(i)] the right of such
Securityholders to receive the Redemption Price or the Optional Redemption
Price, as the case may be, but without interest[, and (ii) the right to
convert such Preferred Securities into Common Stock in the manner provided in Section 4.3
through the close of business on the Redemption Date]; and such Trust
Securities will cease to be Outstanding. 
In the event that any date on which any Redemption Price or the Optional
Redemption Price, as the case may be, is payable is not a Business Day, then
payment of the Redemption Price or the Optional Redemption Price, as the case
may be, payable on such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in respect of any such
delay), except that, if such Business Day is in the next succeeding calendar
year, such payment shall be made on the immediately preceding Business Day, in
each case, with the same force and effect as if made on such date.  Payment of the Redemption Price or the
Optional Redemption Price, as the case may be, shall be made to the Holders of
such Trust Securities as they appear on the Securities Register for the Trust
Securities on the relevant record date, which shall be the date which is the
fifteenth day (whether or not a Business Day) preceding such Redemption Date.


 


(e)           If
less than all the Outstanding Trust Securities are to be redeemed on a
Redemption Date, then the aggregate Liquidation Amount of Trust Securities to
be redeemed shall be allocated on a pro rata basis (based on Liquidation
Amounts) among the Common Securities and the Preferred Securities that are to
be redeemed.  The particular Preferred
Securities to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Property Trustee from the Outstanding Preferred
Securities not previously called for redemption, by lot or by such other method
as the Property Trustee shall deem fair and appropriate and which may provide
for the selection for redemption of portions (equal to
$[              ]
or an integral multiple of $[                ]
in excess thereof) of the Liquidation Amount of the Preferred Securities. The
Property Trustee shall promptly notify the Securities Registrar [and the
Conversion Agent] in writing of the Preferred Securities selected for
redemption and, in the case of any Preferred Securities selected for partial
redemption, the Liquidation Amount thereof to be redeemed; it being understood
that, in the case of Preferred Securities registered in the name of and held of
record by the Clearing Agency (or any successor) or any nominee, the
distribution of the proceeds of such redemption will be made in accordance with
the procedures 


 


18

















 


of
the Clearing Agency or its nominee.  For
all purposes of this Trust Agreement, unless the context otherwise requires,
all provisions relating to the redemption of Preferred Securities shall relate,
in the case of any Preferred Securities redeemed or to be redeemed only in
part, to the portion of the Liquidation Amount of Preferred Securities which
has been or is to be redeemed.  In the
event of any redemption in part, the Trust shall not be required to (i) issue,
register the transfer or exchange of any Preferred Security during a period
beginning at the opening of business 15 days before any selection for
redemption of Preferred Securities and ending at the close of business on the
earliest date in which the relevant notice of redemption is deemed to have been
given to all Holders of Preferred Securities to be so redeemed or (ii) register
the transfer of or exchange of any Preferred Securities so selected for
redemption, in whole or in part, except for the unredeemed portion of any
Preferred Securities being redeemed in part.


 


(f)            In
the event of any redemption, the Trust shall not be required to issue, register
the transfer of or register the exchange of any Preferred Security during a
period beginning at the opening of business 15 days before any Redemption Date
and ending at the close of business on such Redemption Date.


 


SECTION 4.3         [Conversion/Reserved].
[If applicable, this section will specify the rights of Holders of Trust
Securities to cause a conversion agent (the “Conversion Agent”) to convert
Trust Securities, on behalf of the converting Holders.]


 


SECTION 4.4         Special
Event Exchange or Redemption.


 


(a)           If
a Special Event shall occur and be continuing, the Property Trustee shall
direct the Exchange Agent to exchange all Outstanding Trust Securities for Debt
Securities having a principal amount equal to the aggregate Liquidation Amount
of the Trust Securities to be exchanged and with accrued interest in an amount
equal to any unpaid Distribution (including any Additional Amounts) on the
Trust Securities; provided, however, that, in the case of a Tax Event, the
Sponsor shall have the right to (i) direct that less than all, or none, as
appropriate, of the Trust Securities be so exchanged if and for so long as the
Parent shall have elected to pay any Additional Sums such that the amount
received by Holders of Trust Securities not so exchanged in respect of
Distributions and other distributions are not reduced as a result of such Tax
Event, and shall not have revoked any such election or failed to make such
payments or (ii) cause the Trust Securities to be redeemed in the manner
set forth below. If a Tax Event shall occur and be continuing, the Parent shall
have the right, upon not less than 30 nor more than 60 days’ notice, to redeem
the Debt Securities, in whole or in part, for cash upon the later of (x) 90
days following the occurrence of such Tax Event or (y) [                                  ].  Promptly following such redemption, Trust Securities
with an aggregate Liquidation Amount equal to the aggregate principal amount of
the Debt Securities so redeemed will be redeemed by the Trust at the Optional
Redemption Price applicable in the event of a redemption upon the occurrence of
a Tax Event on a pro rata basis.


 


(b)           Notice
of any exchange pursuant to this Section 4.4 (an “Exchange Notice”) of the
Trust Securities, which Exchange Notice shall be irrevocable, will be given by
the Property Trustee by first-class mail to the Sponsor and to each record
Holder of Trust Securities to be exchanged not fewer than 30 nor more than 60
days prior to the date fixed for exchange thereof.  For purposes of the calculation of the date
of exchange and the dates on which 


 


19

















 


notices
are given pursuant to this paragraph (b), an Exchange Notice shall be deemed to
be given on the day such notice is first mailed by first-class mail, postage
prepaid, to each Holder. Each Exchange Notice shall be addressed to each Holder
of Trust Securities at the address of such Holder appearing in the Securities
Register. Each Exchange Notice shall state: (i) the exchange date; (ii) the
aggregate Liquidation Amount and any unpaid Distributions (including any
Additional Amounts) on the Trust Securities to be exchanged and the aggregate
principal amount and any accrued interest on the Debt Securities to be
exchanged therefor; (iii) that on the exchange date the Trust Securities
to be so exchanged shall be exchanged for Debt Securities and that
Distributions on the Trust Securities so exchanged will cease to accumulate on
and after said date; (iv) the record date for the determination of Holders
of Trust Securities to be exchanged as provided in Section 4.4(g); and (v) the
identity of the Exchange Agent, if any, and the place or places where each
Trust Certificate to be exchanged is to be surrendered in exchange for Debt
Securities. No defect in the Exchange Notice or in the mailing thereof with
respect to any Trust Security shall affect the validity of the exchange
proceedings for any other Trust Security.


 


(c)           In
the event that fewer than all the Outstanding Preferred Securities are to be
exchanged, then, on the exchange date, (i) if all of the Outstanding
Preferred Securities are represented by Definitive Preferred Securities
Certificates, the particular Preferred Securities to be exchanged will be
selected by the Property Trustee from the Outstanding Preferred Securities not
previously called for redemption or exchange on a pro rata basis, and (ii) if
all of the Outstanding Preferred Securities are represented by Book Entry
Preferred Securities Certificates, the Property Trustee shall provide for the
selection for exchange of a portion of the Global Certificate representing the
Book-Entry Preferred Securities Certificates on a pro rata basis.  In the case of clause (ii) above, the
particular Book-Entry Preferred Securities Certificates to be exchanged shall
be selected in accordance with the applicable rules and procedures for the
Clearing Agency in whose name, or whose nominee’s name, such Global Certificate
is then held. Any Preferred Securities Certificate that is to be exchanged only
in part shall be surrendered with due endorsement or by a written instrument of
transfer fully executed by the Holder thereof (or its attorney duly authorized
in writing) and the Trust shall prepare and deliver to such Holder, without
service charge, a new Preferred Securities Certificate or Certificates in
aggregate stated Liquidation Amount equal to, and in exchange for, the
unredeemed portion of the Preferred Securities Certificate so surrendered.  The Common Securities shall be exchanged in a
similar manner.


 


(d)           In
the event of an exchange pursuant to this Section 4.4, on the date fixed
for any such exchange, (i) if the Preferred Securities are represented by
Book-Entry Preferred Securities Certificates, the Clearing Agency or its
nominee, as the record Holder of the Preferred Securities, will exchange
through the Exchange Agent the Global Certificate representing the Preferred
Securities to be exchanged for a registered Global Certificate or certificates
representing the Debt Securities to be delivered upon such exchange, (ii) if
the Preferred Securities are represented by Definitive Preferred Securities
Certificates, the certificates representing the Preferred Securities to be so
exchanged will be deemed to represent Debt Securities having a principal amount
equal to the aggregate stated Liquidation Amount of such Preferred Securities
until such certificates are presented to the Exchange Agent for exchange for
definitive certificates representing Debt Securities and (iii) all rights
of the Holders of the Preferred Securities so exchanged will cease, except for
the right of such Holders to receive Debt Securities. The Common Securities
shall be exchanged in a similar manner.


 


20














 


(e)                                  Each
Holder, by becoming a party to this Trust Agreement pursuant to Section 10.11
of this Trust Agreement, will be deemed to have agreed to be bound by these
exchange provisions in regard to the exchange of Trust Securities for Debt
Securities pursuant to the terms described above.


 


(f)                                    Nothing
in this Section 4.4 shall limit the requirement of the Trust to withhold
taxes pursuant to the terms of the Trust Securities or as set forth in this
Trust Agreement or otherwise require the Property Trustee or the Trust to pay
any amounts on account of such withholdings.


 


(g)                                 An
exchange of Trust Securities for Debt Securities pursuant to this Section 4.4
shall be made to Holders of Trust Securities as they appear on the Securities
Register for Trust Securities on the relevant record date, which shall be the
date which is the fifteenth day (whether or not a Business Day) preceding the
exchange date.


 


(h)                                 If
a Special Event shall occur and be continuing, the Trust shall maintain an
office or agency (the “Exchange Agent”) for the purposes specified in this Section 4.4.
The Regular Trustees may remove any Exchange Agent if such Trustees determine
in their sole discretion that the Paying Agent shall have failed to perform its
obligations under this Trust Agreement in any material respect.  The Exchange Agent shall initially be the
Property Trustee.  Any Person acting as
Exchange Agent shall be permitted to resign as Exchange Agent upon 30 days’
written notice to the Property Trustee and the Sponsor; provided, however, that
no such resignation of the Exchange Agent shall be effective until a successor
Exchange Agent has been appointed and has accepted such appointment by
instrument executed by such successor Exchange Agent and delivered to the
Trust, the Sponsor and the resigning Exchange Agent. In the event that the
Property Trustee shall no longer be the Exchange Agent or a successor Exchange
Agent shall resign or its authority to act be revoked, the Regular Trustees
shall appoint a successor that is acceptable to the Property Trustee and the
Sponsor to act as Exchange Agent. The provisions of Sections 8.1, 8.3 and 8.6
shall apply to the Property Trustee also in its role as Exchange Agent, for so
long as the Property Trustee shall act as Exchange Agent and, to the extent
applicable, to any other exchange agent appointed hereunder.


 


SECTION 4.5                          Subordination of Common
Securities.  Payment of Distributions
(including Additional Amounts, if applicable) on, and the Redemption Price of,
the Trust Securities, as applicable, shall be made pro rata based on the
Liquidation Amount of the Trust Securities; provided, however, that if on any
Distribution Date or Redemption Date an Event of Default shall have occurred
and be continuing, no payment of any Distribution (including Additional
Amounts, if applicable) on, or the Redemption Price of, any Common Security,
and no other payment on account of the redemption, liquidation or other
acquisition of Common Securities, shall be made unless payment in full in cash
of all accumulated and unpaid Distributions (including Additional Amounts, if
applicable) on all Outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of payment of the
Redemption Price the full amount of such Redemption Price on all Outstanding
Preferred Securities to be redeemed, shall have been made or provided for, and
all funds immediately available to the Property Trustee shall first be applied
to the payment in full in cash of all Distributions (including Additional Amounts,
if applicable) on, or the Redemption Price of, Preferred Securities then due
and payable.


 


21

















 


SECTION 4.6                          Payment Procedures.  Payments in respect of the Preferred
Securities shall be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register or, if the
Preferred Securities are held by a Clearing Agency, such Distributions shall be
made to the Clearing Agency in immediately available funds, in accordance with
the Certificate Depositary Agreement on the applicable Distribution Dates.  Payments in respect of the Common Securities
shall be made in such manner as shall be mutually agreed between the Property
Trustee and the Holder of the Common Securities.


 


SECTION 4.7                          Tax Returns and Reports.  The Regular Trustees shall prepare (or cause
to be prepared), at the Sponsor’s expense, and file all United States federal,
state and local tax and information returns and reports required to be filed by
or in respect of the Trust. In this regard, the Regular Trustees shall (a) prepare
and file (or cause to be prepared or filed) Form 1041 or the appropriate
Internal Revenue Service form required to be filed in respect of the Trust in
each taxable year of the Trust and (b) prepare and furnish (or cause to be
prepared and furnished) to each Securityholder a Form 1099 or the
appropriate Internal Revenue Service form required to be furnished to such
Securityholder the information required to be provided on such form.  The Regular Trustees shall provide the
Sponsor with a copy of all such returns, reports and schedules promptly after
such filing or furnishing. The Trustees shall comply with United States federal
withholding and backup withholding tax laws and information reporting
requirements with respect to any payments to Securityholders under the Trust
Securities.


 


SECTION 4.8                          Payment of Taxes, Duties,
Etc., of the Trust.  Upon receipt under
the Debt Securities of Additional Sums, the Property Trustee, upon receipt of
written notice from the Sponsor or the Regular Trustees, shall promptly pay
from such Additional Sums any taxes, duties or governmental charges of
whatsoever nature (other than withholding taxes) imposed on the Trust by the
United States or any other taxing authority.


 


SECTION 4.9                          Payments under
Indenture.  Any amount payable hereunder
to any Holder of Preferred Securities shall be reduced by the amount of any
corresponding payment such Holder (or any Owner with respect thereto) has
directly received pursuant to Section [      ]
of the Indenture in accordance with the terms of Section 6.8 hereof.


 


ARTICLE 5

TRUST SECURITIES CERTIFICATES


 


SECTION 5.1                          Initial Ownership.  Upon the creation of the Trust and until the
issuance of the Trust Securities, and at any time during which no Trust
Securities are Outstanding, the Sponsor shall be the sole beneficial owner of
the Trust.


 


SECTION 5.2                          The Trust Securities
Certificates.  The Preferred Securities
Certificates shall be issued in minimum denominations of
$[                ]
Liquidation Amount and integral multiples of
$[              ]
in excess thereof, and the Common Securities Certificates shall be issued in
denominations of $[        ]
Liquidation Amount and integral multiples thereof. The consideration received
by the Trust for the issuance of the Trust Securities shall constitute a
contribution to the capital of the Trust and shall not constitute a loan to the
Trust.  The Trust Securities Certificates
shall be executed on behalf of the Trust by manual facsimile signature of at
least one Regular Trustee and authenticated by the Property Trustee. Preferred
Securities 


 


22

















 


initially will be represented
by one or more certificates in registered global form (the “Global Certificates”).
Trust Securities Certificates bearing the manual or facsimile signatures of
individuals who were, at the time when such signatures shall have been affixed,
authorized to sign on behalf of the Trust, shall be validly issued and entitled
to the benefit of this Trust Agreement, notwithstanding that such individuals
or any of them shall have ceased to be so authorized prior to the delivery of
such Trust Securities Certificates or did not hold such offices at the date of
delivery of such Trust Securities Certificates. A transferee of a Trust
Securities Certificate shall become a Securityholder, and shall be entitled to
the rights and subject to the obligations of a Securityholder hereunder, upon
due registration of such Trust Securities Certificate in such transferee’s name
pursuant to Section 5.4.


 


SECTION 5.3                          Delivery of Trust Securities
Certificates.


 


(a)                                  On
the Closing Date, the Regular Trustees shall cause Trust Securities
Certificates, in an aggregate Liquidation Amount as provided in Sections 2.4
and 2.5, to be executed on behalf of the Trust and delivered to or upon the
written order of the Sponsor, signed by its Chairman of the Board, any Vice
Chairman, its President, any Senior Vice President or any Vice President,
Treasurer or Assistant Treasurer or Controller without further corporate action
by the Sponsor, in authorized denominations.


 


(b)                                 A
Trust Security Certificate shall not be valid until authenticated by the manual
signature of an authorized signatory of the Property Trustee.  The signature shall be conclusive evidence
that the Trust Security Certificate has been authenticated under this Trust
Agreement. Upon a written order of the Trust signed by one Regular Trustee, the
Property Trustee shall authenticate the Trust Security Certificates for
original issue.


 


(c)                                  The
Property Trustee may appoint an authenticating agent acceptable to the Regular
Trustees to authenticate Trust Security Certificates.  An authenticating agent may authenticate
Trust Security Certificates whenever the Property Trustee may do so. Each
reference in this Trust Agreement to authentication by the Property Trustee
includes authentication by such agent. 
An authenticating agent has the same rights as the Property Trustee to
deal with the Sponsor or an Affiliate with respect to the authentication of
Trust Securities.


 


SECTION 5.4                          Registration of Transfer and
Exchange of Preferred Securities; Restrictions on Transfer.


 


(a)                                  The
Securities Registrar shall keep or cause to be kept, at the office or agency
maintained pursuant to Section 5.8, a Securities Register in which,
subject to such reasonable regulations as it may prescribe, the Securities
Registrar shall provide for the registration of Preferred Securities
Certificates and Common Securities Certificates (subject to Section 5.10
in the case of the Common Securities Certificates) and registration of
transfers and exchanges of Preferred Securities Certificates as herein
provided. The Property Trustee shall be the initial Securities Registrar.


 


(b)                                 Upon
surrender for registration of transfer of any Preferred Security at an office
or agency of the Securities Registrar designated pursuant to Section 5.8
for such purpose, 


 


23

















 


a
Regular Trustee shall execute on behalf of the Trust by manual or facsimile
signature, and the Property Trustee shall authenticate and deliver, in the name
of the designated transferee or transferees, one or more new Preferred
Securities of any authorized denominations and of a like aggregate Liquidation
Amount.


 


(c)                                  At
the option of the Holder, and subject to the other provisions of this Section 5.4,
Preferred Securities may be exchanged for other Preferred Securities of any
authorized denomination and of a like Liquidation Amount, upon surrender of the
Preferred Securities to be exchanged at any such office or agency.  Whenever any Preferred Securities are so
surrendered for exchange, a Regular Trustee shall execute on behalf of the
Trust by manual or facsimile signature, and the Property Trustee shall
authenticate and deliver, the Preferred Securities which the Holder making the
exchange is entitled to receive.


 


(d)                                 All
Preferred Securities issued upon any registration of transfer or exchange of
Preferred Securities shall be entitled to the same benefits under this Trust
Agreement as the Preferred Securities surrendered upon such registration of
transfer or exchange.


 


(e)                                  Every
Preferred Security presented or surrendered for registration of transfer or for
exchange shall (if so requested by the Sponsor or the Securities Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Sponsor and the Securities Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.


 


(f)                                    No
service charge shall be made for any registration of transfer or exchange of
Preferred Securities Certificates, but the Securities Registrar may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Preferred Securities
Certificates.


 


SECTION 5.5                          Mutilated, Destroyed, Lost or
Stolen Trust Securities Certificates.  If
(a) any mutilated Trust Securities Certificate shall be surrendered to the
Securities Registrar, or if the Securities Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Trust Securities
Certificate and (b) there shall be delivered to the Securities Registrar
and the Regular Trustees such security or indemnity as may be required by them
to save each of them harmless, then in the absence of notice that such Trust
Securities Certificate shall have been acquired by a bona fide purchaser the
Regular Trustees, or any one of them, on behalf of the Trust shall execute and
make available for authentication and delivery, in exchange for or in lieu of
any such mutilated, destroyed, lost or stolen Trust Securities Certificate, a
new Trust Securities Certificate of like denomination.  In connection with the issuance of any new
Trust Securities Certificate under this Section, the Securities Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.  Any duplicative Trust Securities Certificate
issued pursuant to this Section shall constitute conclusive evidence of an
undivided beneficial interest in the assets of the Trust, as if originally
issued, whether or not the lost, stolen or destroyed Trust Securities
Certificate shall be found at any time.


 


24

















 


SECTION 5.6                          Persons Deemed
Securityholders.  Each Trustee and the
Securities Registrar shall treat the Person in whose name any Trust Securities
Certificate shall be registered in the Securities Register as the owner of such
Trust Securities Certificate for the purpose of receiving Distributions and for
all other purposes whatsoever, and none of the Trustees nor the Securities
Registrar shall be bound by any notice to the contrary.


 


SECTION 5.7                          Access to List of
Securityholders’ Names and Addresses. 
The Regular Trustees or the Sponsor shall furnish or cause to be
furnished (unless the Property Trustee is acting as Securities Registrar with
respect to the Trust Securities under the Trust Agreement) a list, in such form
as the Property Trustee may reasonably require, of the names and addresses of
the Securityholders as of the most recent record date (a) to the Property
Trustee quarterly at least five Business Days before each Distribution Date,
and (b) to the Property Trustee, promptly after receipt by the Sponsor of
a written request therefor from the Property Trustee in order to enable the
Property Trustee to discharge its obligations under this Trust Agreement, in
each case to the extent such information is in the possession or control of the
Regular Trustees or the Sponsor and is not identical to a previously supplied
list or has not otherwise been received by the Property Trustee in its capacity
as Securities Registrar.  The rights of
Securityholders to communicate with other Securityholders with respect to their
rights under this Trust Agreement or under the Trust Securities, and the
corresponding rights of the Trustee shall be as provided in the Trust Indenture
Act.  Each Holder, by receiving and
holding a Trust Securities Certificate, and each Owner shall be deemed to have
agreed not to hold the Sponsor, the Property Trustee or the Regular Trustees
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.


 


SECTION 5.8                          Maintenance of Office or
Agency.  The Securities Registrar shall
maintain in the City of New York, New York, an office or offices or agency or
agencies where Preferred Securities Certificates may be surrendered for
registration of transfer, exchange or conversion and where notices and demands
to or upon the Trustees in respect of the Trust Securities Certificates may be
served.  The Securities Registrar
initially designates
[                                  ],
New York, New York
[                    ],
Attention: 
[                                      ],
as its principal corporate trust office for such purposes.  The Securities Registrar shall give prompt
written notice to the Sponsor and to the Securityholders of any change in the
location of the Securities Register or any such office or agency.


 


SECTION 5.9                          Appointment of Paying
Agent.  In the event that the Preferred
Securities are not in book-entry form only, the Trust shall maintain in the
Borough of Manhattan, City of New York, New York, an office or agency (the “Paying
Agent”) where the Preferred Securities may be presented for payment.  The Paying Agent shall make Distributions to
Securityholders from the Payment Account and shall report the amounts of such
Distributions to the Property Trustee and the Regular Trustees.  Any Paying Agent shall have the revocable
power to withdraw funds from the Payment Account for the purpose of making the
Distributions referred to above. The Regular Trustees may revoke such power and
remove the Paying Agent if such Trustees determine in their sole discretion
that the Paying Agent shall have failed to perform its obligations under this
Trust Agreement in any material respect. 
The Paying Agent shall initially be the Property Trustee, and any
co-paying agent chosen by the Property Trustee and acceptable to the Regular
Trustees and the Sponsor.  Any Person
acting as Paying Agent shall be permitted to resign as Paying Agent upon 30 days’
written notice to the Property Trustee 


 


25

















 


and the Sponsor; provided,
however, that no such resignation of the Paying Agent shall be effective until
a successor Paying Agent has been appointed and has accepted such appointment
by instrument executed by such successor Paying Agent and delivered to the
Trust, the Sponsor and the resigning Paying Agent. In the event that the
Property Trustee shall no longer be the Paying Agent or a successor Paying
Agent shall resign or its authority to act be revoked, the Regular Trustees
shall appoint a successor that is acceptable to the Property Trustee and the
Sponsor to act as Paying Agent (which shall be bank or trust company). Each
successor Paying Agent or any additional Paying Agent shall agree with the
Trustees that, as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Securityholders in trust for the benefit of the Securityholders entitled
thereto until such sums shall be paid to each Securityholder.  The Paying Agent shall return all unclaimed
funds to the Property Trustee and upon removal of a Paying Agent such Paying
Agent shall also return all funds in its possession to the Property Trustee.
The provisions of Sections 8.1, 8.3 and 8.6 shall apply to the Property Trustee
also in its role as Paying Agent, for so long as the Property Trustee shall act
as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise.


 


SECTION 5.10                    Ownership of Common Securities by
Sponsor.  Upon the issuance of Common
Securities as provided for in Section 2.5, the Sponsor shall acquire
beneficial and record ownership of the Common Securities. The Parent has
covenanted in the Guarantee to maintain directly or indirectly 100% ownership
of the Common Securities; provided that any successor of the Parent under the
Indenture may succeed to the Parent’s ownership of the Common Securities. To
the fullest extent permitted by law, any attempted transfer of the Common
Securities in violation of that covenant shall be void. The Regular Trustees
shall cause each Common Securities Certificate to contain a legend stating, “THIS
CERTIFICATE IS NOT TRANSFERABLE EXCEPT TO AN ENTITY WHOLLY OWNED BY HOSPITALITY
PROPERTIES TRUST OR TO CERTAIN SUCCESSORS OF HOSPITALITY PROPERTIES TRUST.”


 


SECTION 5.11                    Global Securities; Non-Global
Securities; Common Securities Certificate.


 


(a)                                  Each
Global Certificate authenticated under this Trust Agreement shall be registered
in the name of the Clearing Agency designated by the Sponsor for such Global
Certificate or a nominee thereof and delivered to such Clearing Agency or a
nominee thereof or custodian therefor, and each such Global Certificate shall
constitute a Preferred Security for all purposes of this Trust Agreement.


 


(b)                                 If
a Global Certificate is to be exchanged for Definitive Preferred Securities
Certificates or canceled in whole, it shall be surrendered by or on behalf of
the Clearing Agency, its nominee or custodian to the Property Trustee, as
Securities Registrar, for exchange or cancellation as provided in this Article 5.  If any Global Certificate is to be exchanged
for Definitive Preferred Securities Certificates or cancelled in part, or if
another Preferred Security is to be exchanged in whole or in part for a
beneficial interest in any Global Certificate, in each case, as provided in Section 5.4,
then either (i) such Global Certificate shall be so surrendered for
exchange or cancellation as provided in this Article 5 or (ii) the
Liquidation 


 


26

















 


Amount
thereof (or number of Preferred Securities represented thereby) shall be
reduced or increased by an amount equal to the portion, thereof to be so
exchanged or cancelled, or equal to the Liquidation Amount of (or number of
securities represented by) such Definitive Preferred Security Certificates to
be so exchanged for a beneficial interest therein, as the case may be, by means
of an appropriate adjustment made on the records of the Property Trustee, as
Securities Registrar, whereupon the Property Trustee, in accordance with the
Applicable Procedures, shall instruct the Clearing Agency or its authorized
representative to make a corresponding adjustment to its records.  Upon any such surrender or adjustment of a
Global Certificate, a Regular Trustee shall execute on behalf of the Trust by manual
or facsimile signature, and the Property Trustee shall, subject to Section 5.4
and as otherwise provided in this Article 5, authenticate and deliver any
Preferred Securities issuable in exchange for such Global Certificate (or any
portion thereof) to or upon the written order of, and registered in such names
as may be directed by, the Clearing Agency or its authorized
representative.  Upon the request of the
Property Trustee in connection with the occurrence of any of the events
specified in this paragraph, the Sponsor shall promptly make available to the
Property Trustee a reasonable supply of Preferred Securities that are not in
the form of Global Certificates.  The
Property Trustee shall be entitled to conclusively rely upon any order,
direction or request of the Clearing Agency or its authorized representative
which is given or made pursuant to this Article 5 if such order, direction
or request is given or made in accordance with the Applicable Procedures.


 


(c)                                  Every
Preferred Security authenticated and delivered upon registration of transfer
of, or in exchange for or in lieu of, a Global Certificate or any portion
thereof, whether pursuant to this Article 5 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a Global Certificate,
unless such Preferred Security is registered in the name of a Person other than
the Clearing Agency for such Global Certificate or a nominee thereof.


 


(d)                                 The
Clearing Agency or its nominee, as registered owner of a Global Certificate,
shall be the Holder of such Global Certificate for all purposes under this
Trust Agreement and the Preferred Securities, and owners of beneficial
interests in a Global Certificate shall hold such interests pursuant to the
Applicable Procedures. Accordingly, any such Owner’s beneficial interest in a
Global Certificate will be shown only on, and the transfer of such interest
shall be effected only through, records maintained by the Clearing Agency or
its nominee or its participants and such owners of beneficial interests in a
Global Certificate will not be considered the owners or Holders of such Global
Certificate for any purpose of this Trust Agreement or the Preferred
Securities.


 


(e)                                  A
single Common Securities Certificate representing the Common Securities shall
initially be issued to the Sponsor in the form of a definitive Common
Securities Certificate.


 


SECTION 5.12                    Notices to Clearing Agency.  To the extent that a notice or other
communication to the Owners is required under this Trust Agreement, unless and
until Definitive Preferred Securities Certificates shall have been issued to
Owners pursuant to Section 5.13, the Trustees shall give all such notices
and communications specified herein to be given to Owners to the Clearing
Agency and shall have no obligations to provide notices directly to the Owners.


 


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SECTION 5.13                    Definitive Preferred Securities
Certificates.  Notwithstanding any other
provision in this Trust Agreement, no Global Certificate may be exchanged in
whole or in part for Preferred Securities registered, and no transfer of a
Global Certificate in whole or in part may be registered, in the name of any
Person other than the Clearing Agency for such Global Certificate or a nominee
thereof unless (a) such Clearing Agency (i) has notified the Trust
and the Sponsor that it is unwilling or unable to continue as Clearing Agency
for such Global Certificate or (ii) has ceased to be a clearing agency
registered as such under the Securities Exchange Act of 1934, as amended and in
either case the Trust and the Sponsor thereupon fail to appoint a successor
Clearing Agency, (b) the Trust and the Sponsor, at their option, notify
the Property Trustee in writing that it elects to cause the issuance of the
Preferred Securities in certificated form or (c) there shall have occurred
and be continuing an Event of Default or any event which after notice or lapse
of time or both would be an Event of Default. In all cases, Definitive
Preferred Securities Certificates delivered in exchange for any Global
Certificate or beneficial interests therein will be registered in the names,
and issued in any approved denominations, requested by or on behalf of the
Clearing Agency (in accordance with its customary procedures).


 


SECTION 5.14                    Rights of Securityholders.  The legal title to the Trust Property is
vested exclusively in the Property Trustee (in its capacity as such) in
accordance with Section 2.9, and the Securityholders shall not have any
right or title therein other than the undivided beneficial interest in the
assets of the Trust conferred by their Trust Securities and they shall have no
right to call for any partition or division of property, profits or rights of
the Trust except as described below.  The
Trust Securities shall be personal property giving only the rights specifically
set forth therein and in this Trust Agreement. 
The Trust Securities shall have no preemptive or similar rights and,
when issued and delivered to Securityholders against payment of the purchase
price therefor, will be fully paid and nonassessable undivided beneficial
interests in the assets of the Trust. The Holders of the Trust Securities, in
their capacities as such, shall be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under Title 2 of the Maryland General Corporation Law, provided, however, the
Holders of Trust Securities may be obligated, pursuant to the terms of this
Trust Agreement, to (a) provide indemnity and/or security in connection
with and pay taxes or governmental charges arising from transfers of Trust
Securities and (b) provide security and indemnity in connection with the
requests of or directions to the Property Trustee to exercise its rights and
powers under the Trust Agreement.


 


ARTICLE 6

ACT OF SECURITYHOLDERS; MEETINGS; VOTING


 


SECTION 6.1                          Limitations on Voting Rights.


 


(a)                                  Except
as provided in this Section, in Section 8.2 and 10.2 and in the Indenture
and as otherwise required by law, no Holder of Preferred Securities shall have
any right to vote or in any manner otherwise control the administration,
operation and management of the Trust or the obligations of the parties hereto,
nor shall anything herein set forth, or contained in the terms of the Trust
Securities Certificates, be construed so as to constitute the Securityholders
from time to time as partners or members of an association.


 


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(b)                                 Subject
to Section 8.2 hereof, if an Event of Default with respect to the
Preferred Securities has occurred and been subsequently cured, waived or
otherwise eliminated, the provisions of Section 6.1(b)(ii) hereof
shall apply. During (x) the period commencing on the date of the
occurrence of an Event of Default with respect to the Preferred Securities and
ending on the date when such Event of Default is cured, waived or otherwise
eliminated, or (y) any period not described in either the preceding
sentence or the preceding clause (x), the provisions of Section 6.1(b)(i) shall
apply.


 


(i)                                     The
Holders of a majority in aggregate Liquidation Amount of the Preferred
Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee or
to exercise any trust or power conferred upon the Property Trustee under this
Trust Agreement, including the right to direct the Property Trustee to exercise
the remedies available to it as a holder of the Debt Securities but excluding
the right to direct the Property Trustee to consent to an amendment, modification
or termination of the Indenture (which shall be as provided below).  So long as any Debt Securities are held by
the Property Trustee, the Trustees shall not (A) direct the time, method
and place of conducting any proceeding for any remedy available to the
Indenture Trustee, or executing any trust or power conferred on the Indenture
Trustee with respect to such Debt Securities, (B) waive any past default
which is waivable under Section [          ]
of the Indenture, (C) exercise any right to rescind or annul a declaration
that the principal of all the Debt Securities shall be due and payable or (D) consent
to any amendment, modification or termination of the Indenture or the Debt
Securities, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a majority in aggregate
Liquidation Amount of all Outstanding Preferred Securities (except in the case
of clause D), which consent, in the event that no Event of Default shall occur
and be continuing, shall be of the Holders of a majority in aggregate
Liquidation Amount of all Trust Securities, voting together as a single class);
provided, however, that where a consent under the Indenture would require the
consent of each holder of Debt Securities affected thereby, no such consent
shall be given by the Property Trustee without the prior written consent of
each Holder of Preferred Securities.  The
Trustees shall not revoke any action previously authorized or approved by a vote
of the Holders of the Preferred Securities, except by a subsequent vote of the
Holders of the Preferred Securities.  The
Property Trustee shall notify all Holders of record of the Preferred Securities
of any notice of default received from the Indenture Trustee with respect to
the Debt Securities.  In addition to
obtaining the foregoing approvals of the Holders of the Preferred Securities,
prior to taking any of the foregoing actions, the Trustees shall, at the
expense of the Sponsor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not be classified as an association
taxable as a corporation or partnership for United States federal income tax
purposes on account of such action.


 


(ii)                                  Subject
to Section 8.2 of this Trust Agreement and only after the Event of Default
with respect to the Preferred Securities has been cured, waived, or otherwise
eliminated, the Holders of a majority in aggregate Liquidation Amount of the
Common Securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Property Trustee or
to exercise any trust or power conferred upon the Property Trustee under this
Trust Agreement, including the 


 


29

















 


right to direct the Property
Trustee to exercise the remedies available to it as a holder of the Debt
Securities but excluding the right to direct the Property Trustee to consent to
an amendment, modification or termination of the Indenture (which shall be as
provided below). So long as any Debt Securities are held by the Property
Trustee, the Trustees shall not (A) direct the time, method and place of
conducting any proceeding for any remedy available to the Indenture Trustee, or
executing any trust or power conferred on the Indenture Trustee with respect to
such Debt Securities, (B) waive any past default which is waivable under Section 5.13
of the Indenture, (C) exercise any right to rescind or annul declaration
that the principal of all the Debt Securities shall be due and payable or (D) consent
to any amendment, modification or termination of the Indenture or the Debt
Securities, where such consent shall be required, without, in each case,
obtaining the prior approval of the Holders of a majority in aggregate
Liquidation Amount of all Common Securities (except in the case of clause (D),
which consent, in the event that no Event of Default shall occur and be
continuing, shall be of the Holders of a majority in aggregate Liquidation
Amount of all Trust Securities, voting together as a single class); provided,
however, that where a consent under the Indenture would require the consent of
each holder of Debt Securities affected thereby, no such consent shall be given
by the Property Trustee without the prior written consent of each Holder of
Common Securities. The Trustees shall not revoke any action previously
authorized or approved by a vote of the Holders of the Common Securities,
except by a subsequent vote of the Holders of the Common Securities. The
Property Trustee shall notify all Holders of record of the Common Securities of
any notice of default received from the Indenture Trustee with respect to the
Debt Securities.  In addition to
obtaining the foregoing approvals of the Holders of the Common Securities,
prior to taking any of the foregoing actions, the Trustees shall, at the
expense of the Sponsor, obtain an Opinion of Counsel experienced in such
matters to the effect that the Trust will not be classified as an association
taxable as a corporation or partnership for United States federal income tax
purposes on account of such action.


 


(iii)                               The
provisions of this Section 6.1(b) and Section 6.1(a) of
this Trust Agreement shall be in lieu of Section 316(a)(1)(A) of the
Trust Indenture Act, and such Section 316(a)(1)(A) is hereby
expressly excluded from this Trust Agreement and the Preferred Securities, as
permitted by the Trust Indenture Act.


 


(c)                                  If
any proposed amendment to this Trust Agreement provides for, or the Trustees
otherwise propose to effect, the dissolution, winding-up or termination of the
Trust, other than pursuant to the terms of this Trust Agreement, then the
Holders of Outstanding Preferred Securities as a class will be entitled to vote
on such amendment or proposal and such amendment or proposal shall not be
effective except with the approval of the Holders of a majority in aggregate
Liquidation Amount of the Outstanding Preferred Securities.


 


SECTION 6.2                          Notice of Meetings.  Notice of all meetings of the Holders of the
Preferred Securities, stating the time, place and purpose of the meeting, shall
be given by the Property Trustee pursuant to Section 10.8 to each
Preferred Securityholder of record, at its registered address, at least 15 days
and not more than 90 days before the meeting. At any such meeting, any business
properly before the meeting may be so considered whether or not stated in


 


30














 


the notice of the meeting. Any adjourned meeting may be held as
adjourned without further notice.


 


SECTION 6.3         Meetings
of Preferred Securityholders.  No annual
meeting of Securityholders is required to be held. The Regular Trustees,
however, shall call a meeting of Securityholders to vote on any matter upon the
written request of the Preferred Securityholders of record of 25% of the
Preferred Securities (based upon their Liquidation Amount), and the Regular
Trustees or the Property Trustee may, at any time in their discretion, call a
meeting of the Holders of Preferred Securities to vote on any matters as to
which such Holders are entitled to vote.


 


Holders
of record of a majority of the Preferred Securities (based upon their
Liquidation Amount), present in person or by proxy, shall constitute a quorum
at any meeting of Securityholders.


 


If a
quorum is present at a meeting, an affirmative vote by the Holders of record of
Preferred Securities present, in person or by proxy, holding a majority of the outstanding
Preferred Securities (based upon their Liquidation Amount) at such meeting
shall constitute the action of the Securityholders, unless this Trust Agreement
requires a greater number of affirmative votes.


 


SECTION 6.4         Voting
Rights.  Securityholders shall be
entitled to one vote for each
$[          ] of Liquidation
Amount represented by their Trust Securities in respect of any matter as to
which such Securityholders are entitled to vote.  Notwithstanding that Holders of Preferred
Securities are entitled to vote or consent under any of the circumstances
described above, any of the Preferred Securities that are owned at such time by
the Sponsor, the Trustees or any affiliate of any Trustee shall, for purposes
of such vote or consent, be treated as if such Preferred Securities were not
outstanding.


 


SECTION 6.5         Proxies,
Etc.  At any meeting of Securityholders,
any Securityholders entitled to vote thereat may vote by proxy, provided that
no proxy shall be voted at any meeting unless it shall have been placed on file
with the Regular Trustees, or with such other officer or agent of the Trust as
the Regular Trustees may direct, for verification prior to the time at which
such vote shall be taken. Pursuant to a resolution of the Property Trustee,
proxies may be solicited in the name of the Property Trustee or one or more
officers of the Property Trustee. Only Securityholders of record shall be
entitled to vote. When Trust Securities are held jointly by several Persons,
any one of them may vote at any meeting in person or represented by proxy in
respect of such Trust Securities, but if more than one of them shall be present
at such meeting in person or by proxy, and such joint owners or their proxies
so present disagree as to any vote to be cast, such vote shall not be received
in respect of such Trust Securities.  A
proxy purporting to be executed by or on behalf of a Securityholder shall be
deemed valid unless challenged at or prior to its exercise, and the burden of
proving invalidity shall rest on the challenger.  No proxy shall be valid more than three years
after its date of execution.


 


SECTION 6.6         Securityholder
Action by Written Consent.  Any action
which may be taken by Securityholders at a meeting may be taken without a
meeting if Securityholders holding a majority of all Outstanding Trust
Securities (based upon their Liquidation Amount) entitled to 


 


31

















 


vote in respect of such action (or such larger proportion thereof as
shall be required by any express provision of this Trust Agreement) shall
consent to the action in writing.


 


SECTION 6.7         Record
Date for Voting and Other Purposes.  For
the purposes of determining the Securityholders who are entitled to notice of
and to vote at any meeting or by written consent, or to participate in any
Distribution on the Trust Securities in respect of which a record date is not
otherwise provided for in this Trust Agreement, or for the purpose of any other
action, the Regular Trustees may from time to time fix a date, not more than 90
days prior to the date of any meeting of Securityholders or the payment of
Distributions or other action, as the case may be, as a record date for the
determination of the identity of the Securityholders of record for such
purposes.


 


SECTION 6.8         Acts
of Securityholders.


 


(a)           Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Trust Agreement to be given, made or taken
by Securityholders or Owners may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Securityholders or
Owners in person or by an agent duly appointed in writing; and, except as
otherwise expressly provided herein, such action shall become effective when
such instrument or instruments are delivered to a Regular Trustee. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the “Act” of the Securityholders
or Owners signing such instrument or instruments.  Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Trust Agreement and (subject to Section 8.1) conclusive in favor of
the Trustees, if made in the manner provided in this Section.


 


(b)           The
fact and date of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such
instrument or writing acknowledged to him the execution thereof.  Where such execution is by a signer acting in
a capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date of
the execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which any Trustee
receiving the same deems sufficient.


 


(c)           The
ownership of Preferred Securities shall be proved by the Securities Register.


 


(d)           Any
request, demand, authorization, direction, notice, consent, waiver or other Act
of the Securityholder of any Trust Security shall bind every future
Securityholder of the same Trust Security and the Securityholder of every Trust
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustees or the Trust in reliance thereon, whether or not
notation of such action is made upon such Trust Security.


 


32

















 


(e)           Without
limiting the foregoing, a Securityholder entitled hereunder to take any action
hereunder with regard to any particular Trust Security may do so with regard to
all or any part of the Liquidation Amount of such Trust Security or by one or
more duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such Liquidation Amount.


 


(f)            If
any dispute shall arise between the Securityholders and the Regular Trustees or
among such Securityholders or Regular Trustees with respect to the
authenticity, validity or binding nature of any request, demand, authorization,
direction, consent, waiver or other Act of such Securityholder or Trustee under
this Article 6, then the determination of such matter by the Property
Trustee shall be conclusive with respect to such matter.


 


(g)           Upon
the occurrence and continuation of an Event of Default, the Holders of
Preferred Securities shall rely on the enforcement by the Property Trustee of
its rights as holder of the Debt Securities against the Parent.  If the Property Trustee fails to enforce its
rights as holder of the Debt Securities after a request therefor by a Holder of
Preferred Securities, such holder may proceed to enforce such rights directly
against the Sponsor.   Notwithstanding
the foregoing, if an Event of Default has occurred and continuing and such
event is attributable to the failure of the Parent to pay interest or principal
on the Debt Securities on the date such interest or principal is otherwise
payable (or in the case of redemption, on the Redemption Date), then a Holder
of Preferred Securities shall have the right to institute a proceeding directly
against the Parent, for enforcement of payment to such holder of the principal
amount of or interest on Debt Securities having a principal amount equal to the
aggregate Liquidation Amount of the Preferred Securities of such Holder after
the respective due date specified in the Debt Securities (a “Direct Action”).  In connection with any such Direct Action,
the rights of the Parent will be subrogated to the rights of any Holder of the
Preferred Securities to the extent of any payment made by the Parent to such
Holder of Preferred Securities as a result of such Direct Action.


 


SECTION 6.9         Inspection
of Records.  Upon reasonable notice to
the Regular Trustees and the Property Trustee, the records of the Trust shall
be open to inspection by Securityholders during normal business hours for any
purpose reasonably related to such Securityholder’s interest as a
Securityholder.


 


ARTICLE 7

REPRESENTATIONS AND WARRANTIES


 


SECTION 7.1         Representations
and Warranties of the Property Trustee. 
The Property Trustee hereby represents and warrants for the benefit of
the Sponsor and the Securityholders that:


 


(a)           the
Property Trustee is a banking corporation duly organized validly existing and
in good standing under the laws of the State of New York;


 


(b)           the
Property Trustee has full corporate power, authority and legal right to
execute, deliver and perform its obligations under this Trust Agreement and has
taken all necessary action to authorize the execution, delivery and performance
by it of this Trust Agreement;


 


33

















 


(c)           this
Trust Agreement has been duly authorized, executed and delivered by the
Property Trustee and constitutes the valid and legally binding agreement of the
Property Trustee enforceable against it in accordance with its terms, subject
to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors’
rights and to general equity principles; and


 


(d)           the
execution, delivery and performance by the Property Trustee of this Trust
Agreement have been duly authorized by all necessary corporate or other action
on the part of the Property Trustee and do not require any approval of
stockholders of the Property Trustee and such execution, delivery and
performance will not (i) violate the Property Trustee’s charter or by-laws
or (ii) violate any law, governmental rule or regulation of the
United States or the State of New York, as the case may be, governing the
banking, corporate, or trust powers of the Property Trustee, or any order,
judgment or decree applicable to the Property Trustee.


 


SECTION 7.2         Representations
and Warranties of Sponsor.  The Sponsor
hereby represents and warrants for the benefit of the Property Trustee and the
Securityholders that:


 


(a)           the
Trust Securities Certificates issued on the Closing Date on behalf of the Trust
have been duly authorized and will have been duly and validly executed, issued
and delivered by the Trustees pursuant to the terms and provisions of, and in
accordance with the requirements of, this Trust Agreement and the
Securityholders will be, as of such date, entitled to the benefits of this
Trust Agreement; and


 


(b)           there
are no taxes, fees or other governmental charges payable by the Trust (or the
Trustees on behalf of the Trust) under the laws of the State of Maryland or any
political subdivision thereof in connection with the execution, delivery and
performance by the Property Trustee of this Trust Agreement.


 


ARTICLE 8

THE TRUSTEES


 


SECTION 8.1         Certain
Duties and Responsibilities.


 


(a)           The
duties and responsibilities of the Trustees shall be as provided by this Trust
Agreement and, in the case of the Property Trustee, by the Trust Indenture Act.
The Property Trustee, before the occurrence of any Event of Default and after
the curing or waiving of all Events of Default that may have occurred, shall
undertake to perform only such duties and obligations as are specifically set
forth in this Trust Agreement and the Trust Indenture Act and no implied
covenants shall be read into this Trust Agreement against the Property Trustee.
In case an Event of Default has occurred (that has not been cured or waived
pursuant to Section 8.2) of which a Responsible Officer of the Property
Trustee has actual knowledge, the Property Trustee shall exercise such rights
and powers vested in it by this Trust Agreement and the Trust Indenture Act,
and use the same degree of care and skill in its exercise, as a prudent
individual would exercise or use under the circumstances in the conduct of his
or her own affairs. Notwithstanding the foregoing, no provision of this Trust
Agreement shall require the Trustees to expend or risk their own funds or
otherwise incur any financial liability in the performance of any of their
duties hereunder, or in the exercise of any of their rights or powers, if they
shall have 


 


34

















 


reasonable
grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.  Whether or not
therein expressly so provided, every provision of this Trust Agreement relating
to the conduct or affecting the liability of or affording protection to the
Trustees shall be subject to the provisions of this Section.  Nothing in this Trust Agreement shall be
construed to release the Regular Trustees from liability for their own grossly
negligent action, their own grossly negligent failure to act, or their own
willful misconduct.  To the extent that,
at law or in equity, a Regular Trustee has duties (including fiduciary duties,
if any) and liabilities relating thereto to the Trust or to the
Securityholders, the Sponsor and the Securityholders agree that the provisions
of this Trust Agreement restrict or replace such other duties and liabilities
of the Regular Trustees.  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
officer (if any) of the Trust shall be liable to the Trust or to any
Securityholder for money damages. 
Neither the amendment nor repeal of this Section, nor the adoption or
amendment of any other provision of this Trust Agreement inconsistent with this
Section, shall apply to or affect in any respect the applicability of the
preceding sentence with respect to any act or failure to act which occurred
prior to such amendment, repeal or adoption.


 


(b)           All
payments made by the Property Trustee or a Paying Agent in respect of the Trust
Securities shall be made only from the revenue and proceeds from the Trust
Property and only to the extent that there shall be sufficient revenue or
proceeds from the Trust Property to enable the Property Trustee or a Paying
Agent to make payments in accordance with the terms hereof. Each
Securityholder, by its acceptance of a Trust Security, agrees that it will look
solely to the revenue and proceeds from the Trust Property to the extent
legally available for distribution to it as herein provided and that the
Trustees are not personally liable to it for any amount distributable in
respect of any Trust Security or for any other liability in respect of any
Trust Security.  This Section 8.1(b) does
not limit the liability of the Trustees expressly set forth elsewhere in this
Trust Agreement or, in the case of the Property Trustee, in the Trust Indenture
Act.


 


(c)           No
provision of this Trust Agreement shall be construed to relieve the Property
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:


 


(i)            the Property Trustee shall not be
liable for any error of judgment made in good faith by an authorized officer of
the Property Trustee, unless it shall be proved that the Property Trustee was
negligent in ascertaining the pertinent facts;


 


(ii)           the Property Trustee shall not be
liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a majority in
aggregate Liquidation Amount of the Trust Securities relating to the time,
method and place of conducting any proceeding for any remedy available to the
Property Trustee, or exercising any trust or power conferred upon the Property
Trustee under this Trust Agreement;


 


(iii)          the Property Trustee’s sole duty with
respect to the custody, safekeeping and physical preservation of the Debt
Securities and the Payment Account shall be to deal 


 


35

















 


with such property as
fiduciary assets, subject to the protections and limitations on liability
afforded to the Property Trustee under this Trust Agreement and the Trust
Indenture Act;


 


(iv)          the Property Trustee shall not be
liable for any interest on any money received by it except as it may otherwise
agree, in writing, with the Sponsor and money held by the Property Trustee need
not be segregated from other funds held by it except in relation to the Payment
Account maintained by the Property Trustee pursuant to Section 3.1 and
except to the extent otherwise required by law;


 


(v)           the Property Trustee shall not be
responsible for monitoring the compliance by the Regular Trustees or the
Sponsor with their respective duties under this Trust Agreement, nor shall the
Property Trustee be liable for the default or misconduct of the Regular
Trustees or the Sponsor;


 


(vi)          the Property Trustee shall have no
duty or liability with respect to the value, genuineness, existence or
sufficiency of the Debt Securities or the payment of any taxes or assessments
thereon or in connection therewith;


 


(vii)         the duties and obligations of the
Property Trustee shall be determined solely by the express provisions of this
Trust Agreement and in the Preferred Securities and the Common Securities, and
the Property Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Trust Agreement
and in the Preferred Securities and the Common Securities, and no implied
covenants or obligations shall be read into this Trust Agreement against the
Property Trustee; and


 


(viii)        no provision of this Trust Agreement
shall require the Property Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties or
in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that the repayment of such funds liability is not
reasonably assured to it under the terms of this Trust Agreement or indemnity
reasonably satisfactory to the Property Trustee against such risk or liability
is not reasonably assured to it.


 


SECTION 8.2         Notice
of Defaults.


 


(a)           Within
ten days after the occurrence of any Event of Default actually known to a
Responsible Officer of the Property Trustee, the Property Trustee shall
transmit, in the manner and to the extent provided in Section 10.8, notice
of such Event of Default to the Holders of Preferred Securities, the Regular
Trustees and the Sponsor, unless such Event of Default shall have been cured or
waived, provided that, except for a default in the payment of principal of (or
premium, if any) or interest on any of the Debt Securities, the Property
Trustee shall be fully protected in withholding such notice if and so long as the
Board of Trustees, the executive committee, or a trust committee of directors
and/or Responsible Officers of the Property Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Preferred Securities.


 


36

















 


(b)           Within
ten days after the receipt of notice of the Parent’s exercise of its right to
extend the interest payment period for the Debt Securities pursuant to the
Indenture, the Property Trustee shall transmit, in the manner and to the extent
provided in Section 10.8, notice of such exercise to the Securityholders,
unless such exercise shall have been revoked.


 


(c)           The
Holders of a majority in Liquidation Amount of Preferred Securities may, by
vote, on behalf of the Holders of all of the Preferred Securities, waive any
past Event of Default in respect of the Preferred Securities and its
consequences, provided that, if the underlying Indenture Event of Default:


 


(i)            is not waivable under the Indenture,
the Event of Default under this Trust Agreement shall also not be waivable; or


 


(ii)           requires the consent or vote of
greater than a majority in principal amount of the holders of the Debt
Securities, including the consent or vote of all such holders, (a “Super
Majority”) to be waived under the Indenture, the Event of Default under this
Trust Agreement may only be waived by the vote of the Holders of the same
proportion in Liquidation Amount of the Preferred Securities that the relevant
Super Majority represents of the aggregate principal amount of the Debt
Securities outstanding.


 


The
provisions of Section 6.1(b) and this Section 8.2(c) shall
be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act, and
such Section 316(a)(1)(B) of the Trust Indenture Act is hereby
expressly excluded from this Trust Agreement and the Preferred Securities, as
permitted by the Trust Indenture Act. Upon such waiver, any such default shall
cease to exist, and any Event of Default with respect to the Preferred
Securities arising therefrom shall be deemed to have been cured, for every
purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other default or an Event of Default with respect to the
Preferred Securities or impair any right consequent thereon. Any waiver by the
Holders of the Preferred Securities of an Event of Default with respect to the
Preferred Securities shall also be deemed to constitute a waiver by the Holders
of the Common Securities of any such Event of Default with respect to the
Common Securities for all purposes of this Trust Agreement without any further
act, vote, or consent of the Holders of the Common Securities.


 


(d)           The
Holders of a majority in Liquidation Amount of the Common Securities may, by
vote, on behalf of the Holders of all of the Common Securities, waive any past
Event of Default with respect to the Common Securities and its consequences,
provided that, if the underlying Indenture Event of Default:


 


(i)            is not waivable under the Indenture,
except where the Holders of the Common Securities are deemed to have waived
such Event of Default under the Trust Agreement as provided below in this Section 8.2(d),
the Event of Default under this Trust Agreement shall also not be waivable; or


 


(ii)           requires the consent or vote of a
Super Majority to be waived, except where the Holders of the Common Securities
are deemed to have waived such Event of Default under this Trust Agreement
provided below in this Section 8.2(d), the Event of Default under this
Trust Agreement may only be waived by the vote of the Holders of the 


 


37

















 


same proportion in
Liquidation Amount of the Common Securities that the relevant Super Majority
represents of the aggregate principal amount of the Debt Securities
outstanding; provided further, that each Holder of Common Securities will be
deemed to have waived any such Event of Default and all Events of Default with
respect to the Common Securities and its consequences until all Events of
Default with respect to the Preferred Securities have been cured, waived or
otherwise eliminated and until such Events of Default have been so cured,
waived or otherwise eliminated, the Property Trustee will be deemed to be
acting solely on behalf of the Holders of the Preferred Securities and only the
Holders of the Preferred Securities will have the right to direct the Property
Trustee in accordance with the terms of the Securities. The provisions of Section 6.1(b) and
this Section 8.2(d) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Trust Agreement and the
Preferred Securities, as permitted by the Trust Indenture Act. Subject to the
foregoing provisions of this Section 8.2(d), upon such waiver, any such
default shall cease to exist and any Event of Default with respect to the
Common Securities arising therefrom shall be deemed to have been cured for
every purpose of this Trust Agreement, but no such waiver shall extend to any
subsequent or other default or Event of Default with respect to the Common
Securities or impair any right consequent thereon.


 


(e)           A
waiver of an Indenture Event of Default by the Property Trustee at the
direction of the Holders of the Preferred Securities, constitutes a waiver of
the corresponding Event of Default under this Trust Agreement. The foregoing
provisions of this Section 8.2(e) shall be in lieu of Section 316(a)(1)(B) of
the Trust Indenture Act and such Section 316(a)(1)(B) of the Trust
Indenture Act is hereby expressly excluded from this Trust Agreement and the
Preferred Securities, as permitted by the Trust Indenture Act.


 


SECTION 8.3         Certain
Rights of Property Trustee.  Subject to
the provisions of Section 8.1:


 


(a)           the
Property Trustee may conclusively rely and shall be fully protected in acting
or refraining from acting in good faith upon any resolution, Opinion of
Counsel, certificate, written representation of a Holder or transferee such as
a certificate presented for transfer, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;


 


(b)           if
no Event of Default has occurred and is continuing and, (i) in performing
its duties under this Trust Agreement the Property Trustee is required to
decide between alternative courses of action or (ii) in construing any of
the provisions in this Trust Agreement, the Property Trustee finds the same
ambiguous or inconsistent with any other provisions contained herein or (iii) the
Property Trustee is unsure of the application of any provision of this Trust
Agreement, then, except as to any matter as to which the Holders of Preferred
Securities are entitled to vote under the terms of this Trust Agreement, the
Property Trustee shall deliver a notice to the Sponsor requesting written
instructions of the Sponsor as to the course of action to be taken and the
Property Trustee shall take such action, or refrain from 


 


38

















 


taking
such action, as the Property Trustee shall be instructed in writing to take, or
to refrain from taking, by the Sponsor; provided, however, that if the Property
Trustee does not receive such instructions of the Sponsor within ten Business
Days after it has delivered such notice, or such reasonably shorter period of
time set forth in such notice (which to the extent practicable shall not be
less than two Business Days), it may, but shall be under no duty to, take or
refrain from taking such action not inconsistent with this Trust Agreement as
it shall deem advisable and in the best interests of the Securityholders, in
which event the Property Trustee shall have no liability except for its own bad
faith negligence or willful misconduct;


 


(c)           any
direction or act of the Sponsor or the Regular Trustees contemplated by this
Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate;


 


(d)           whenever
in the administration of this Trust Agreement, the Property Trustee shall deem
it desirable that a matter be established before undertaking, suffering or
omitting any action hereunder, the Property Trustee (unless other evidence is
herein specifically prescribed) may, in the absence of bad faith on its part,
request and conclusively rely upon an Officers’ Certificate and an Opinion of
Counsel which, upon receipt of such request, shall be promptly delivered by the
Sponsor or the Regular Trustees;


 


(e)           the
Property Trustee shall have no duty to accomplish any recording, filing or
registration of any instrument (including any financing or continuation
statement or any filing under tax or securities laws) or any rerecording,
refiling or reregistration thereof;


 


(f)            the
Property Trustee may consult with counsel at the Sponsor’s expense (which
counsel may be counsel to the Sponsor or any of its Affiliates and may include
any of its employees) and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon and in accordance with such advice; and the Property Trustee shall have
the right at any time to seek instructions concerning the administration of
this Trust Agreement from any court of competent jurisdiction;


 


(g)           the
Property Trustee shall be under no obligation to exercise any of the rights or
powers vested in it by this Trust Agreement at the request or direction of any
of the Securityholders pursuant to this Trust Agreement, unless such
Securityholders shall have offered to the Property Trustee reasonable security
or indemnity satisfactory to it against the costs, expenses (including
attorneys’ fees and expenses and the expenses of the Property Trustee’s agents,
custodians or nominees) and liabilities which might be incurred by it in
compliance with such request or direction;


 


(h)           the
Property Trustee shall not be bound to make any investigation into the facts or
matters stated in any resolutions, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond, debenture, note or
other evidence of indebtedness or other paper or document, but the Property
Trustee may make such further inquiry or investigation into such facts or
custodian or nominee matters as it may see fit;


 


(i)            the
Property Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through its agents, custodians or
nominees, 


 


39

















 


attorneys
or an Affiliate, provided that the Property Trustee shall not be responsible
for the negligence or recklessness on the part of any agent, attorney,
custodian or nominee appointed by it with due care hereunder;


 


(j)            whenever
in the administration of this Trust Agreement the Property Trustee shall deem
it desirable to receive instructions with respect to enforcing any remedy or
right or taking any other action hereunder, the Property Trustee (i) may
request instructions from the Holders of the Trust Securities, which
instructions may only be given by the Holders of the same proportion in
Liquidation Amount of the Trust Securities as would be entitled to direct the
Property Trustee under the terms of the Trust Securities in respect of such
remedy, right or action, (ii) may refrain from enforcing such remedy or
right or taking such other action until such instructions are received, and (iii) shall
be fully protected in conclusively relying on or acting in accordance with such
instructions;


 


(k)           except
as otherwise expressly provided by this Trust Agreement, the Property Trustee
shall not be under any obligation to take any action that is discretionary
under the provisions of this Trust Agreement;


 


(l)            to
the maximum extent that Maryland law in effect from time to time permits
limitation of the liability of trustees of a business trust, the Property Trustee
shall not be liable for money damages for any action taken, suffered, or
omitted to be taken by it in connection with this Trust Agreement; and


 


(m)          in
the event that the Property Trustee is also acting as a Paying Agent, Exchange
Agent, [Conversion Agent] and/or Securities Registrar hereunder, the rights and
protections afforded to the Property Trustee pursuant to this Article 8
shall also be afforded to such Paying Agent, Exchange Agent, [Conversion Agent]
and/or Securities Registrar.


 


No
provision of this Trust Agreement shall be deemed to impose any duty or
obligation on the Property Trustee to perform any act or acts or exercise any
right, power, duty or obligation conferred or imposed on it, in any
jurisdiction in which it shall be illegal, or in which the Property Trustee
shall be unqualified or incompetent in accordance with applicable law, to
perform any such act or acts, or to exercise any such right, power, duty or
obligation.  No permissive power or authority
available to the Property Trustee shall be construed to be a duty.


 


SECTION 8.4         Not
Responsible for Recitals or Issuance of Securities.  The recitals contained herein and in the
Trust Securities Certificates shall not be taken as the statements of the
Trustees, and the Trustees do not assume any responsibility for their
correctness. The Trustees shall not be accountable for the use or application
by the Sponsor of the proceeds of the Debt Securities.


 


SECTION 8.5         May Hold
Securities.  Except as provided in the
definition of the term “Outstanding” in Article 1, any Trustee or any
other agent of any Trustee or the Trust, in its individual or any other
capacity, may become the owner or pledgee of Trust Securities and, subject to Section 8.8
and 8.12, may otherwise deal with the Trust with the same rights it would have
if it were not a Trustee or such other agent.


 


40














 


SECTION 8.6         Compensation;
Indemnity; Fees.


 


The Sponsor agrees:


 


(a)           to
pay the Trustees from time to time reasonable compensation for all services
rendered by them hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);


 


(b)           except
as otherwise expressly provided herein, to reimburse the Trustees upon request
for all reasonable expenses, disbursements and advances incurred or made by the
Trustees in accordance with any provision of this Trust Agreement (including
the reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith;


 


(c)           to
the fullest extent permitted by Maryland law, to indemnify and hold harmless (i) each
Trustee, (ii) any Affiliate of any Trustee, (iii) any officer,
director, shareholder, employee, representative or agent of any Trustee, and (iv) any
employee or agent of the Trust or its Affiliates (each referred to herein as an
“Indemnified Person”) from and against any loss, damage, liability, tax,
penalty, expense or claim of any kind or nature whatsoever incurred by such
Indemnified Person by reason of the creation, operation, dissolution or
termination of the Trust or in connection with the administration of the Trust
or 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 authority conferred on such Indemnified
Person by this Trust Agreement, except that no Indemnified Person shall be
entitled to be indemnified in respect of any loss, damage or claim incurred by
such Indemnified Person by reason of negligence or willful misconduct with
respect to such acts or omissions; and


 


(d)           no
Trustee may claim any lien or charge on any Trust Property as a result of any
amount due pursuant to this Section 8.6.


 


SECTION 8.7         Property
Trustee Required; Eligibility of Trustees.


 


(a)           There
shall at all times be a Property Trustee hereunder with respect to the Trust
Securities.  The Property Trustee shall
be a Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000.  If any such Person publishes reports of
condition at least annually, pursuant to law or to the requirements of its
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Property Trustee with respect to the Trust
Securities shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.


 


(b)           There
shall at all times be one or more Regular Trustees hereunder with respect to
the Trust Securities. Each Regular Trustee shall be either a natural person who
is at least 21 years of age or a legal entity that shall act through one or
more persons authorized to bind that entity.


 


SECTION 8.8         Conflicting
Interests.  If the Property Trustee has
or shall acquire a conflicting interest within the meaning of the Trust
Indenture Act, the Property Trustee shall 


 


41

















 


either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act
and this Trust Agreement.


 


SECTION 8.9         Resignation
and Removal; Appointment of Successor.


 


(a)           Subject
to Sections 8.9(b), Trustees (the “Relevant Trustee”) may be appointed or
removed without cause at any time:


 


(i)            until the issuance of any Trust
Securities, by written instrument executed by the Sponsor; and


 


(ii)           after the issuance of any Securities,
by vote of the Holders of a majority in Liquidation Amount of the Common
Securities voting as a class.


 


(b)           The
Trustee that acts as Property Trustee shall not be removed in accordance with Section 8.9(a) until
a successor possessing the qualifications to act as a Property Trustee under Section 8.7
(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 removed Property Trustee.


 


(c)           A
Trustee appointed to office shall hold office until his, her or its successor
shall have been appointed or until his, her or its death removal, resignation,
dissolution or liquidation. Any Trustee may resign from office (without need
for prior or subsequent accounting) by an instrument in writing signed by the
Trustee and delivered to the Sponsor and the Trust, which resignation shall
take effect upon such delivery or upon such later date as is specified therein;
provided, however, that:


 


(i)            No such resignation of the Trustee
that acts as the Property Trustee shall be effective:


 


(A)          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; or


 


(B)           until the assets of the Trust have
been completely liquidated and the proceeds thereof distributed to the Holders
of the Securities; and


 


(ii)           no appointment of a successor
Property Trustee shall be effective until all fees, charges, and expenses of
the retiring Property Trustee have been paid.


 


(d)           The
Holders of the Common Securities shall use their best efforts to promptly
appoint a Successor Property Trustee if the Property Trustee delivers an
instrument of resignation in accordance with Section 8.9(c).


 


(e)           If
no Successor Property Trustee shall have been appointed and accepted
appointment as provided in this Section 8.9 within 60 days after delivery
pursuant to this Section 8.9 of an instrument of resignation or removal,
the Property Trustee resigning or being 


 


42

















 


removed may petition any court of competent jurisdiction for
appointment of a Successor Property Trustee. 
Such court may thereupon, after prescribing such notice, if any, as it
may deem proper and prescribe, appoint a Successor Property Trustee.


 


(f)            No
Property Trustee shall be liable for the acts or omissions to act of any
Successor Property Trustee.


 


(g)           The
Property Trustee shall give notice of each resignation and each removal of a
Trustee and each appointment of a successor Trustee to all Securityholders in
the manner provided in Section 10.8 and shall give notice to the
Sponsor.  Each notice shall include the
name of the successor Relevant Trustee and the address of its Corporate Trust
Office if it is the Property Trustee.


 


(h)           Notwithstanding
the foregoing or any other provision of this Trust Agreement, in the event any
Regular Trustee who is a natural person dies or becomes, in the opinion of the
Sponsor, incompetent or incapacitated, the vacancy created by such death,
incompetence or incapacity may be filled by (i) the unanimous act of the
remaining Regular Trustees if there are at least two of them or (ii) otherwise
by the Sponsor (with the successor in each case being a Person who satisfies
the eligibility requirement for Regular Trustees set forth in Section 8.7).


 


The
indemnity provided to a Trustee under Section 8.6 shall survive any
Trustee’s resignation or removal or termination of this Trust Agreement.


 


SECTION 8.10       Acceptance
of Appointment by Successor.


 


(a)           In
case of the appointment hereunder of a successor Relevant Trustee, the retiring
Relevant Trustee and each successor Relevant Trustee shall execute and deliver
an amendment hereto wherein each successor Relevant Trustee shall accept such
appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Relevant Trustee all the rights, powers, trusts and duties of the
retiring Relevant Trustee and (ii) shall add to or change any of the
provisions of this Trust Agreement as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Relevant
Trustee, it being understood that nothing herein or in such amendment shall
constitute such Relevant Trustees as co-trustees and upon the execution and
delivery of such amendment the resignation or removal of the retiring Relevant
Trustee shall become effective to the extent provided therein and each such
successor Relevant Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of the retiring
Relevant Trustee; but, on request of the Trust or any successor Relevant
Trustee, such retiring Relevant Trustee shall duly assign, transfer and deliver
to such successor Relevant Trustee all Trust Property, all proceeds thereof and
money held by such retiring Relevant Trustee hereunder.


 


(b)           Upon
request of any such successor Relevant Trustee, the Trust shall execute any and
all instruments for more fully and certainly vesting in and confirming to such
successor Relevant Trustee all such rights, powers and trusts referred to in
the first or second preceding paragraph, as the case may be.


 


43

















 


(c)           No
successor Relevant Trustee shall accept its appointment unless at the time of
such acceptance such successor Relevant Trustee shall be qualified and eligible
under this Article.


 


SECTION 8.11       Merger,
Conversion, Consolidation or Succession to Business.  Any Person into which the Property Trustee or
any Regular Trustee that is not a natural person may be merged or converted or
with which it may be consolidated, or any Person resulting from any merger,
conversion or consolidation to which such Relevant Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
business of such Relevant Trustee, shall be the successor of such Relevant
Trustee hereunder, provided such Person shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or
any further act on the part of any of the parties hereto.


 


SECTION 8.12       Preferential
Collection of Claims Against Sponsor or Trust. 
If and when the Property Trustee shall be or become a creditor of the Sponsor
or the Trust (or any other obligor upon the Debt Securities or the Trust
Securities), the Property Trustee shall be subject to and shall take all
actions necessary in order to comply with the provisions of the Trust Indenture
Act regarding the collection of claims against the Sponsor or Trust (or any
such other obligor).


 


SECTION 8.13       Reports
by Property Trustee.  Within 60 days
after May 15 of each year, commencing with the first May 15 after the
first issuance of Preferred Securities, the Property Trustee shall provide to
the Holders of the Preferred Securities such reports as are required by Section 313
of the Trust Indenture Act, if any, in the form and in the manner provided by Section 313
of the Trust Indenture Act. The Property Trustee shall also comply with the
requirements of Section 313(d) of the Trust Indenture Act.


 


SECTION 8.14       Reports
to the Property Trustee.  The Sponsor and
the Regular Trustees on behalf of the Trust shall provide to the Property
Trustee such documents, reports and information as are required by Section 314
of the Trust Indenture Act (if any) and the compliance certificate required by Section 314(a) of
the Trust Indenture Act in the form, in the manner and at the times required by
Section 314 of the Trust Indenture Act.


 


SECTION 8.15       Evidence
of Compliance with Conditions Precedent. 
Each of the Sponsor and the Regular Trustees on behalf of the Trust
shall provide to the Property Trustee such evidence of compliance with all
conditions precedent, if any, provided for in this Trust Agreement that relate
to any of the matters set forth in Section 314(c) of the Trust
Indenture Act. Any certificate or opinion required to be given by an officer
pursuant to Section 314(c)(1) of the Trust Indenture Act shall be
given in the form of an Officers’ Certificate.


 


SECTION 8.16       Number
of Trustees.


 


(a)           The
number of Trustees shall be three, provided that the Holder of all of the
Common Securities by written instrument may increase or decrease the number of
Regular Trustees.


 


(b)           If
a Trustee ceases to hold office for any reason and the number of Regular
Trustees is not reduced pursuant to Section 8.16(a), or if the number of
Trustees is increased pursuant to Section 8.16(a), a vacancy shall occur.


 


44

















 


(c)           The
death, resignation, retirement, removal, bankruptcy, incompetence or incapacity
to perform the duties of a Trustee shall not operate to dissolve, terminate or
annul the Trust. Whenever a vacancy in the number of Regular Trustees shall occur,
until such vacancy is filled by the appointment of a Regular Trustee in
accordance with Section 8.9, the Regular Trustees in office, regardless of
their number (and notwithstanding any other provision of this Agreement), shall
have all the powers granted to the Regular Trustees and shall discharge all the
duties imposed upon the Regular Trustees by this Trust Agreement.


 


SECTION 8.17       Delegation
of Power.


 


(a)           Any
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 purpose of executing any documents contemplated in Section 2.7(a),
including any registration statement or amendment thereof filed with the
Commission, or making any other governmental filing.


 


(b)           The
Regular Trustees shall have power to delegate from time to time to such of
their number or to the Sponsor the doing of such things and the execution of
such instruments either in the name of the Trust or the names of the Regular
Trustees or otherwise as the Regular Trustees may deem expedient, to the extent
such delegation is not prohibited by applicable law or contrary to the
provisions of the Trust Agreement, as set forth herein.


 


ARTICLE 9

DISSOLUTION, LIQUIDATION AND MERGER


 


SECTION 9.1         Dissolution
upon Expiration Date.  Unless earlier
dissolved, the Trust shall automatically dissolve on
[                          ]
(the “Expiration Date”).


 


SECTION 9.2         Early
Dissolution.  The first to occur of any
of the following events is an “Early Dissolution Event”:


 


(a)           the
occurrence of a Bankruptcy Event in respect of, or the dissolution or
liquidation (other than a deemed liquidation for tax purposes of, the Parent or
the Sponsor;


 


(b)           the
occurrence of a Special Event except in the case of a Tax Event following which
the Parent has elected (i) to pay any Additional Sums (in accordance with Section 4.4)
such that the net amount received by Holders of Preferred Securities in respect
of Distributions are not reduced as a result of such Tax Event and the Parent
has not revoked any such election or failed to make such payments or (ii) to
redeem all or some of the Debt Securities pursuant to Section 4.4(a);


 


(c)           the
redemption, conversion or exchange of all of the Trust Securities;


 


(d)           an
order for dissolution of the Trust shall have been entered by a court of
competent jurisdiction; and


 


(e)           receipt
by the Property Trustee of written notice from the Parent or the Sponsor at any
time (which direction is optional and wholly within the discretion of the
Parent 


 


45

















 


and the Sponsor, as the case may be) of its intention to dissolve the
Trust and distribute the Debt Securities in exchange for the Preferred
Securities.


 


SECTION 9.3         Dissolution.  The respective obligations and
responsibilities of the Trustees and the Trust created and continued hereby
shall terminate upon the latest to occur of the following: (a) the
distribution by the Property Trustee to Securityholders upon the liquidation of
the Trust pursuant to Section 9.4, or upon the redemption of all of the
Trust Securities pursuant to Section 4.2, of all amounts required to be
distributed hereunder upon the final payment of the Trust Securities; (b) the
payment of all expenses owed by the Trust; and (c) the discharge of all
administrative duties of the Regular Trustees, including the performance of any
tax reporting obligations with respect to the Trust or the Securityholders.


 


SECTION 9.4         Liquidation.


 


(a)           If
an Early Dissolution Event specified in clause (a), (b), (d) or (e) of
Section 9.2 occurs or upon the Expiration Date, the Trust shall be
liquidated by the Trustees as expeditiously as the Trustees determine to be
possible by distributing, after satisfaction of liabilities to creditors of the
Trust as provided by applicable law, to each Securityholder an aggregate
principal amount of Debt Securities equal to the aggregate Liquidation Amount
of Trust Securities held by such Holder, subject to Section 9.4(d). Notice
liquidation shall be given by the Property Trustee by first-class mail, postage
prepaid, mailed not later than 30 nor more than 60 days prior to the
Liquidation Date to each Holder of Trust Securities at such Holder’s address as
it appears in the Securities Register. 
All notices of liquidation shall be prepared by the Regular Trustees and
shall:


 


(i)            state the Liquidation Date;


 


(ii)           state that, from and after the
Liquidation Date, the Trust Securities will no longer be deemed to be
Outstanding and any Trust Securities Certificates not surrendered for exchange
will be deemed to represent an aggregate principal amount of Debt Securities
equal to the aggregate Liquidation Amount of Preferred Securities held by such
Holder; and


 


(iii)          provide such information with respect
to the mechanics by which Holders may exchange Trust Securities Certificates
for Debt Securities, or, if Section 9.4(d) applies, receive a
Liquidation Distribution, as the Regular Trustees or the Property Trustee shall
deem appropriate.


 


(b)           Except
where Section 9.2(c) or 9.4(d) applies, in order to effect the
liquidation of the Trust and distribution of the Debt Securities to
Securityholders, the Property Trustee shall establish a record date for such
distribution (which shall be not more than 45 days prior to the Liquidation
Date and, unless the Property Trustee determines otherwise, shall be the date
which is the fifteenth day (whether or not a Business Day) next preceding the
Liquidation Date) and, either itself acting as exchange agent or through the
appointment of a separate exchange agent, shall establish such procedures as it
shall deem appropriate to effect the distribution of Debt Securities in
exchange for the Outstanding Trust Securities Certificates.


 


46

















 


(c)           Except
where Section 9.2(c) or 9.4(d) applies, after the Liquidation
Date, (i) the Trust Securities will no longer be deemed to be Outstanding,
(ii) the Clearing Agency or its nominee, as the record holder of such
Trust Securities, will receive a registered global certificate or certificates
representing the Debt Securities to be delivered upon such distribution and (iii) any
Trust Securities Certificates not held by the Clearing Agency will be deemed to
represent an aggregate principal amount of Debt Securities equal to the aggregate
Liquidation Amount of Preferred Securities held by such Holders, and bearing
accrued and unpaid interest in an amount equal to the accrued and unpaid
Distributions on such Trust Securities until such certificates are presented to
the Property Trustee for transfer or reissuance.


 


(d)           In
the event that, notwithstanding the other provisions of this Section 9.4,
whether because of an order for dissolution entered by a court of competent
jurisdiction or otherwise, distribution of the Debt Securities in the manner
provided herein is determined by the Property Trustee not to be practicable,
the Trust Property shall be liquidated, and the Trust shall be wound-up or
terminated, by the Property Trustee in such manner as the Property Trustee
determines, and a majority of the Regular Trustees shall prepare, execute and
file the certificate of cancellation with the State Department of Assessments
and Taxation of Maryland. In such event, Securityholders will be entitled to
receive out of the assets of the Trust available for distribution to
Securityholders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to the Liquidation Amount per Trust
Security plus accrued and unpaid Distributions thereon to the date of payment
(such amount being the “Liquidation Distribution”).  If, upon any such winding-up or termination,
the Liquidation Distribution can be paid only in part because the Trust has
insufficient assets available to pay in full the aggregate Liquidation Distribution,
then, subject to the next succeeding sentence, the amounts payable by the Trust
on the Trust Securities shall be paid on a pro rata basis (based upon
Liquidation Amounts).  The Holder of the
Common Securities will be entitled to receive Liquidation Distributions upon
any such winding-up or termination pro rata (determined as aforesaid) with
Holders of Preferred Securities, except that, if an Indenture Event of Default
has occurred and is continuing, the Preferred Securities shall have a priority
over the Common Securities.


 


SECTION 9.5         Mergers,
Consolidations, Amalgamations or Replacements of the Trust.  The Trust may not merge with or into,
consolidate, amalgamate, or be replaced by, or convey, transfer or lease its
properties and assets substantially as an entirety to any Person, except
pursuant to this Section 9.5 or Section 9.4. At the request of the
Sponsor, with the consent of the Regular Trustees and without the consent of
the Property Trustee or the Holders of the Preferred Securities, the Trust may
merge with or into, consolidate, amalgamate, be replaced by or convey, transfer
or lease its properties and assets substantially as an entirety to a trust
organized as such under the laws of any state; provided, that (a) such
successor entity either (i) expressly assumes all of the obligations of
the Trust with respect to the Preferred Securities or (ii) substitutes for
the Preferred Securities other securities having substantially the same terms
as the Preferred Securities (the “Successor Securities”) so long as the
Successor Securities rank the same as the Preferred Securities rank in priority
with respect to Distributions and payments upon liquidation, redemption and
otherwise, (b) the Sponsor expressly appoints a trustee of such successor
entity possessing the same powers and duties as the Property Trustee as the
holder of the Debt Securities, (c) the Successor Securities are listed, or
any Successor Securities will be listed upon notification of issuance, on any
national securities exchange or other organization on which the Preferred
Securities are then listed, if any, (d) such merger, consolidation, 


 


47

















 


amalgamation, replacement, conveyance, transfer or lease does not cause
the Preferred Securities (including any Successor Securities) to be downgraded
by any nationally recognized statistical rating organization, (e) such
merger consolidation, amalgamation, replacement, conveyance, transfer or lease
does not adversely affect the rights, preferences and privileges of the Holders
of the Preferred Securities (including any Successor Securities) in any
material respect (other than with respect to any dilution of the Holder’s
interest in the new entity), (f) such successor entity has a purpose substantially
identical to that of the Trust, (g) prior to such merger, consolidation,
amalgamation, replacement, conveyance, transfer or lease the Sponsor has
received an Opinion of Counsel to the effect that (i) such merger,
consolidation, amalgamation, replacement, conveyance, transfer or lease does
not adversely affect the rights, preferences and privileges of the Holders of
the Preferred Securities (including any Successor Securities) in any material
respect (other than with respect to any dilution of the Holder’s interest in
the new entity), (ii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease neither the Trust nor such successor
entity will be required to register as an investment company under the 1940
Act, and (iii) following such merger, consolidation, amalgamation,
replacement, conveyance, transfer or lease, the Trust or such successor entity
will be treated as a grantor trust for United States federal income tax
purposes and (h) the Sponsor or any permitted successor or assignee owns,
directly or indirectly, all of the common securities of such successor entity
and guarantees the obligations of such successor entity under the Successor
Securities at least to the extent provided by the Guarantee. Notwithstanding
the foregoing, the Trust shall not, except with the consent of Holders of 100%
in aggregate Liquidation Amount of the Preferred Securities, consolidate,
amalgamate, merge with or into, be replaced by or convey, transfer or lease its
properties and assets substantially as an entirety to any other entity or
permit any other entity to consolidate, amalgamate, merge with or into, or
replace it if such consolidation, amalgamation, merger, replacement,
conveyance, transfer or lease would cause the Trust or the successor entity to
be classified as other than a grantor trust for United States federal income
tax purposes.


 


ARTICLE 10

MISCELLANEOUS PROVISIONS


 


SECTION 10.1       Limitation
of Rights of Securityholders.  Other than
as set forth in Section 9.2, the death, incapacity, dissolution,
bankruptcy or termination of any Person having an interest, beneficial or
otherwise, in Trust Securities shall not operate to dissolve the Trust or
terminate this Trust Agreement, nor entitle the legal representatives or heirs of
such Person or any Securityholder for such Person to claim an accounting, take
any action or bring any proceeding in any court for a partition or winding-up
of the arrangements contemplated hereby, nor otherwise affect the rights,
obligations and liabilities of the parties hereto or any of them.


 


SECTION 10.2       Amendment.


 


(a)           This
Trust Agreement may be amended from time to time by the Trustees and the
Sponsor, without the consent of any Securityholders, (i) to cure any
ambiguity, correct or supplement any provision herein which may be inconsistent
with any other provision herein, or to make any other provisions with respect
to matters or questions arising under this Trust Agreement, which shall not be
inconsistent with the other provisions of this Trust Agreement, (ii) to
modify, eliminate or add to any provisions of this Trust Agreement to such
extent as shall be necessary to ensure that the Trust will be classified for
United States federal income tax 


 


48

















 


purposes as a grantor trust at all times that any Trust Securities are
Outstanding or to ensure that the Trust will not be required to register as an “investment
company” under the 1940 Act, or classified as other than a grantor trust for
United States federal income tax purposes, or (iii) to comply with the
requirements of the Commission in order to effect or maintain the qualification
of this Trust Agreement under the Trust Indenture Act; provided, however, that
in the case of clause (i), such action shall not adversely affect in any
material respect the interests of any Securityholder, and any such amendments
of this Trust Agreement shall become effective when notice thereof is given to
the Securityholders.


 


(b)           Except
as provided in Section 10.2(c) hereof, any provision of this Trust
Agreement may be amended by the Trustees and the Sponsor with (i) the
consent of Holders representing not less than a majority (based upon
Liquidation Amounts) of the Trust Securities then Outstanding, acting as a
single class, and (ii) receipt by the Trustees of an Opinion of Counsel to
the effect that such amendment or the exercise of any power granted to the
Trustees in accordance with such amendment will not affect the Trust’s status
as a grantor trust for United States federal income tax purposes or the Trust’s
exemption from the status of an “investment company” under the 1940 Act,
provided, however, if any amendment or proposal that would adversely affect the
powers, preferences or special rights of the Trust Securities, whether by way
of amendment or otherwise, would adversely affect only the Preferred Securities
or only the Common Securities, then only the affected class will be entitled to
vote on such amendment or proposal and such amendment or proposal shall not be effective
except with the approval of a majority in Liquidation Amount of such class of
Trust Securities.


 


(c)           In
addition to and notwithstanding any other provision in this Trust Agreement,
without the consent of each affected Securityholder (such consent being
obtained in accordance with Section 6.3 or 6.6 hereof), this Trust
Agreement may not be amended to (i) change the amount or timing of any
Distribution on the Trust Securities or otherwise adversely affect the amount
of any Distribution required to be made in respect of the Trust Securities as
of a specified date or (ii) restrict the right of a Securityholder to
institute suit for the enforcement of any such payment on or after such
date.  Notwithstanding any other
provision herein, without the unanimous consent of the Securityholders (such
consent being obtained in accordance with Section 6.3 or 6.6 hereof), this
paragraph (c) of this Section 10.2 may not be amended.


 


(d)           Notwithstanding
any other provisions of this Trust Agreement, no Trustee shall enter into or
consent to any amendment to this Trust Agreement which would cause the Trust to
fail or cease to qualify for the exemption from the status of an “investment
company” under the 1940 Act or be classified other than a grantor trust for
United States federal income tax purposes.


 


(e)           Notwithstanding
anything in this Trust Agreement to the contrary, without the consent of the
Sponsor, this Trust Agreement may not be amended in a manner which imposes any
additional obligation on the Sponsor.


 


(f)            In
the event that any amendment to this Trust Agreement is made, the Regular
Trustees shall promptly provide to the Sponsor a copy of such amendment.


 


49

















 


(g)           The
Property Trustee shall not be required to enter into any amendment to this
Trust Agreement which affects its own rights, duties or immunities under this
Trust Agreement.  The Property Trustee
shall be entitled to receive an Opinion of Counsel and an Officers’ Certificate
stating that any amendment to this Trust Agreement is in compliance with this
Trust Agreement and that all conditions precedent, if any, in this Trust
Agreement to the execution and delivery of such amendment have been satisfied.


 


SECTION 10.3       Separability.  In case any provision in this Trust Agreement
or in the Trust Securities Certificates shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.


 


SECTION 10.4       Governing
Law.  EXCEPT AS PROVIDED IN SECTION 10.10
HEREOF, THIS TRUST AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF EACH OF THE
SECURITYHOLDERS, THE TRUST AND TRUSTEES WITH RESPECT TO THIS TRUST AGREEMENT
AND THE TRUST SECURITIES SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO ITS CONFLICT OF LAWS
PRINCIPLES.


 


SECTION 10.5       Payments
Due on Non-Business Day.  If the date
fixed for any payment on any Trust Security shall be a day which is not a
Business Day, then such payment need not be made on such date but may be made
on the next succeeding day which is a Business Day except as otherwise provided
in Section 4.1(a) and Section 4.2(d), with the same force and
effect as though made on the date fixed for such payment, and no interest shall
accrue thereon for the period after such date.


 


SECTION 10.6       Successors.  This Trust Agreement shall be binding upon
and shall inure to the benefit of any successor to the Sponsor, the Trust or
the Relevant Trustee, including any successor by operation of law.  Except in connection with a transaction that
is permitted under Article 8 of the Indenture and pursuant to which the
assignee agrees in writing to perform the Sponsor’s obligations hereunder, the
Sponsor shall not assign its obligations hereunder.


 


SECTION 10.7       Headings.  The Article and Section headings
are for convenience only and shall not affect the construction of this Trust
Agreement.


 


SECTION 10.8       Reports,
Notices and Demands.


 


(a)           Any
report, notice, demand or other communication, which by any provision of this
Trust Agreement is required or permitted to be given or served to or upon any
Securityholder or the Sponsor, may be given or served in writing by deposit
thereof, first-class postage prepaid, in the United States mail, hand delivery
or facsimile transmission, in each case, addressed, (i) in the case of a
Holder of Preferred Securities, to such Holder as such Holder’s name and
address may appear on the Securities Register; and (ii) in the case of the
Holder of the Common Securities to HPT Capital Trust Holdings, c/o Hospitality
Properties Trust, 400 Centre Street, Newton, Massachusetts 02458.


 


(b)           Any
notice, demand or other communication which by any provision of this Trust
Agreement is required or permitted to be given or served to or upon the Trust,
the Property Trustee or the Regular Trustees shall be given in writing
addressed (until another


 


50














 


address
is published by the Trust) as follows: (a) with respect to the Property
Trustee, to
[                                ,
Attention:                                             ],
and (b) with respect to the Regular Trustees, to them at the address for
notices to the Sponsor, marked “Attention:
[                        ].  Such notice, demand or other communication to
or upon the Trust or the Property Trustee shall be deemed to have been
sufficiently given or made only upon actual receipt of the writing by the Trust
or the Property Trustee.


 


SECTION 10.9       Agreement
Not to Petition.  Each of the Trustees
and the Sponsor agrees for the benefit of the Securityholders that, until at
least one year and one day after the Trust has been dissolved in accordance
with Article 9, it shall not file, or join in the filing of, a petition
against the Trust under any Bankruptcy Law or otherwise join in the
commencement of any proceeding against the Trust under any Bankruptcy Law. In
the event the Sponsor takes action in violation of this Section 10.9, the
Property Trustee agrees, for the benefit of Securityholders, that, at the
expense of the Sponsor, it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such petition by the Sponsor against
the Trust or the commencement of such action and raise the defense that the
Sponsor has agreed in writing not to take such action and should be stopped and
precluded therefrom and such other defenses, if any, as counsel for the Trustee
or the Trust may assert. The provisions of this Section 10.9 shall survive
the dissolution of this Trust Agreement.


 


SECTION 10.10     Trust
Indenture Act; Conflict with Trust Indenture Act.


 


(a)           This
Trust Agreement is subject to the provisions of the Trust Indenture Act that
are required to be part of this Trust Agreement and shall, to the extent
applicable, be governed by such provisions.


 


(b)           The
Property Trustee shall be the only Trustee which is the trustee for the
purposes of the Trust Indenture Act.


 


(c)           If
any provision hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in this Trust Agreement by any of the
provisions of the Trust Indenture Act, such required provision shall control.
If any provision of this Trust Agreement modifies or excludes any provision of
the Trust Indenture Act which may be so modified or excluded, the latter
provision shall be deemed to apply to this Trust Agreement as so modified or to
be excluded, as the case may be.


 


(d)           The
application of the Trust Indenture Act to this Trust Agreement shall not affect
the nature of the Trust Securities as equity securities representing undivided
beneficial interests in the assets of the Trust.


 


SECTION 10.11     Acceptance
of Terms of Trust Agreement, Guarantee and Indenture.  THE RECEIPT AND ACCEPTANCE OF A TRUST
SECURITY OR ANY INTEREST THEREIN BY OR ON BEHALF OF A SECURITYHOLDER OR
BENEFICIAL OWNER, WITHOUT ANY SIGNATURE OR FURTHER MANIFESTATION OF ASSENT,
SHALL CONSTITUTE THE UNCONDITIONAL ACCEPTANCE BY THE SECURITYHOLDER AND ALL
OTHERS HAVING A BENEFICIAL INTEREST IN SUCH TRUST SECURITY OF ALL THE TERMS AND
PROVISIONS OF THIS TRUST AGREEMENT AND 


 


51

















 


AGREEMENT TO THE SUBORDINATION PROVISIONS AND OTHER TERMS OF THE
GUARANTEE AND THE INDENTURE, AND SHALL CONSTITUTE THE AGREEMENT OF THE TRUST,
SUCH SECURITYHOLDER AND SUCH OTHERS THAT THE TERMS AND PROVISIONS OF THIS TRUST
AGREEMENT SHALL BE BINDING, OPERATIVE AND EFFECTIVE AS THE AGREEMENT OF THE
TRUST AND SUCH SECURITYHOLDER AND SUCH OTHERS.


 


SECTION 10.12     Counterparts.  This Trust Agreement may contain more than
one counterpart of the signature page and this Trust Agreement 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.


 


52

















 


IN
WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly
executed as of the day and year first above written.


 


 


	
  HPT CAPITAL TRUST
  HOLDINGS, as Sponsor

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
                                                    ,
  as Property Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  as Regular Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  as Regular Trustee

  	
   

  	
   

  



 

















 


EXHIBIT A


 


Copy of


Certificate of Trust


 

















 


EXHIBIT B


 


Form of
Certificate Depositary Agreement


[Attach DTC
Letter]


 

















 


EXHIBIT C


 


Form of
Common Securities of HPT Capital Trust [      ]


 


THIS CERTIFICATE IS NOT
TRANSFERABLE EXCEPT TO AN ENTITY WHOLLY OWNED BY HOSPITALITY PROPERTIES TRUST
OR TO CERTAIN SUCCESSORS OF HOSPITALITY PROPERTIES TRUST.


 


Certificate Number
[    ] Number of Common Securities
[    ]


Certificate of
Evidencing of Common Securities


of


HPT Capital Trust
[  ]


 


Common Securities


(Liquidation
Amount $[      ] per Common Security)


 


HPT
Capital Trust [      ], a business trust created
under the laws of the State of Maryland (the “Trust”), hereby certifies that
HPT Capital Trust Holdings, a business trust created under the laws of the
State of Maryland (the “Holder”), is the registered owner of
[          ] common
securities of the Trust representing undivided beneficial interests in the
assets of the Trust (the “Common Securities”). 
Except as set forth in Section 5.10 of the Trust Agreement (as
defined below), the Common Securities are not transferable and any attempted
transfer hereof shall be void.  The
designations, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities are set forth in, and this certificate and
the Common Securities represented hereby are issued and shall in all respects
be subject to the terms and provisions of, the Amended and Restated Trust
Agreement of the Trust dated as of
[                      ,
        ], as the same may be amended
from time to time (the “Trust Agreement”), including the designation of the
terms of the Common Securities as set forth therein.  The Trust will furnish a copy of the Trust
Agreement and the Guarantee (as defined in the Trust Agreement) to the Holder
without charge upon written request to the Trust at its principal place of
business or registered office.


 


Upon
receipt of this certificate, the Holder is bound by the Trust Agreement and is
entitled to the benefits thereunder.


 


IN
WITNESS WHEREOF, one of the Regular Trustees of the Trust has executed this
certificate.


 


 


	
  Dated:

  	
   

  	
   

  	
  HPT CAPITAL TRUST
  [  ]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  As Regular Trustee and
  not individually

  
						



 














 


PROPERTY TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


This is one of the Common Securities referred to in
the within-mentioned Trust Agreement.


 


	
   

  	
  [NAME
  OF PROPERTY TRUSTEE],

  
	
   

  	
  as
  Property Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Authorized
  Signatory

  



 

















 


EXHIBIT D


 


FORM OF
PREFERRED SECURITIES OF HPT CAPITAL TRUST
[      ]


 


[IF
THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE, INSERT — This Preferred
Security is a Book-Entry Preferred Securities Certificate within the meaning of
the Trust Agreement hereinafter referred to and is registered in the name of
The Depository Trust Company, a New York corporation (“DTC”), or a nominee of
DTC.  This Preferred Security is
exchangeable for Preferred Securities registered in the name of a person other
than DTC or its nominee only in the limited circumstances described in the
Trust Agreement, and no transfer of this Preferred Security (other than a
transfer of this Preferred Security as a whole by DTC to a nominee of DTC or by
a nominee of DTC to DTC or another nominee of DTC) may be registered except in
limited circumstances.


 


Unless this certificate is
presented by an authorized representative of DTC, to 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.]


 


CERTIFICATE NUMBER
[      ] NUMBER OF PREFERRED SECURITIES
[      ]


CUSIP NO.
[                          ]


 


CERTIFICATE EVIDENCING PREFERRED
SECURITIES


 


OF


 


HPT CAPITAL TRUST
[      ]


 


[TITLE OF PREFERRED SECURITIES]


 


(LIQUIDATION AMOUNT
$[      ] PER PREFERRED SECURITY)


 


HPT Capital Trust
[      ], a business trust created under the laws
of the State of Maryland (the “Trust”), hereby certifies that
[                                ]
(the “Holder”) is the registered owner of
[                                    
(                  )]
preferred securities of the Trust representing an undivided beneficial interest
in the assets of the Trust and designated the HPT Capital Trust
[      ] [title of Preferred Securities]
(Liquidation Amount $[      ] per Preferred
Security) (the “Preferred Securities”). 
Except to the extent set forth in the Trust Agreement (as defined
below), the Preferred Securities are transferable on the books and records of
the Trust, in person or by a duly authorized attorney, upon surrender of this
certificate duly endorsed and in proper form for transfer as provided in Section 5.4
of the Trust Agreement (as defined below). 
The designations, rights, privileges, restrictions, preferences and
other terms and provisions of the Preferred Securities are set forth in, and
this certificate and the Preferred Securities represented hereby are 


 

















 


issued
and shall in all respects be subject to the terms and provisions of, the
Amended and Restated Trust Agreement of the Trust dated as of
[                    ]
as the same may be amended from time to time (the “Trust Agreement”) including
the designation of the terms of Preferred Securities as set forth therein. The
Holder is entitled to the benefits of the Guarantee Agreement entered into by
Hospitality Properties Trust, a Maryland real estate investment trust, and
[Name of Guarantee Trustee], as Guarantee Trustee, dated as of [                    ]
(the “Guarantee”), to the extent provided therein.  The Trust will furnish a copy of the Trust
Agreement and the Guarantee to the Holder without charge upon written request
to the Trust at its principal place of business or registered office.


 


Upon receipt of this
certificate, the Holder is bound by the Trust Agreement and is entitled to the
benefits thereunder.


 


IN WITNESS WHEREOF, one of
the Regular Trustees of the Trust has executed this certificate.


 


	
  Dated:

  	
   

  	
  HPT
  Capital Trust [      ]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
  As
  Regular Trustee and not individually

  
					



 


2

















 


EXHIBIT D


 


PROPERTY
TRUSTEE’S CERTIFICATE OF AUTHENTICATION


 


This is one of the Preferred
Securities referred to in the within mentioned Trust Agreement.


 


 


	
   

  	
  [NAME
  OF PROPERTY TRUSTEE],

  
	
   

  	
  as
  Property Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Authorized
  Signatory

  



 

















 


EXHIBIT D


 


ASSIGNMENT


 


FOR VALUE RECEIVED, the
undersigned assigns and transfers this Preferred Security to:


 


 


 


(Insert
assignee’s social security or tax identification number)


 


 


(Insert
address and zip code of assignee)


 


and
irrevocably appoints


 


 


Securities
Certificate on the books of the Trust. 
The agent may substitute another to act for him or her.


 


 


	
  Date:

  	
   

  	
   

  
	
   

  
	
  Signature:

  	
   

  	
   

  
				



 


(Sign
exactly as your name appears on the other side of this Preferred Securities
Certificate)


 

















 


EXHIBIT D


 


[TO BE
ATTACHED TO GLOBAL CERTIFICATE]


 


SCHEDULE
A


 


The initial Liquidation
Amount of this Global Certificate shall be
$[                      ].  The following increases or decreases in the
Liquidation Amount of this Global Certificate have been made:


 


	
  Date Made

  	
   

  	
  Amount of Increase in 

  Liquidation Amount

  of This Global 

  Certificate Including 

  Upon Exercise of 

  Over-Allotment

  Option

  	
   

  	
  Amount of Decrease

  in Liquidation

  Amount of this Global 

  Certificate

  	
   

  	
  Liquidation of the

  Certificate

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


i