Service Properties Trust S-3ASR, filed Aug 20, 2021
Service Properties Trust (SVC)
S-3ASR
2021-08-20
View Original
Added on
October 19, 2026
As filed with the Securities and Exchange Commission on August 20, 2021
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
UNDER THE SECURITIES ACT OF 1933
SERVICE PROPERTIES TRUST
SUBSIDIARY GUARANTOR REGISTRANTS (SEE BELOW)
(Exact name of registrant as specified in its charter)
| |
Maryland
(State or other jurisdiction of
incorporation or organization) |
| |
04-3262075
(I.R.S. Employer
Identification Number) |
|
Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458-1634
(617) 964-8389
255 Washington Street, Suite 300
Newton, Massachusetts 02458-1634
(617) 964-8389
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Brian E. Donley
Chief Financial Officer and Treasurer
Service Properties Trust
Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458-1634
(617) 964-8389
Chief Financial Officer and Treasurer
Service Properties Trust
Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458-1634
(617) 964-8389
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
Howard E. Berkenblit
Lindsey A. Getz
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
Lindsey A. Getz
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of the Registration Statement as determined by the Registrant.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer ☒
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Accelerated filer ☐
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Non-accelerated filer ☐
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Smaller reporting company ☐
Emerging growth company ☐
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
CALCULATION OF REGISTRATION FEE
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Title of Each Class of Securities
to be Registered |
| | |
Amount to be
Registered(1) |
| | |
Proposed Maximum
Offering Price per Unit(1) |
| | |
Proposed Maximum
Aggregate Offering Price(1)(2) |
| | |
Amount of
Registration Fee(3) |
|
|
Debt Securities
|
| | | | | | | | | | | | | | | | |
|
Preferred Shares of Beneficial Interest
|
| | | | | | | | | | | | | | | | |
|
Depositary Shares Representing Preferred Shares(4)
|
| | | | | | | | | | | | | | | | |
|
Common Shares of Beneficial Interest, $.01 par value per
share |
| | | | | | | | | | | | | | | | |
|
Warrants
|
| | | | | | | | | | | | | | | | |
|
Guarantees of Debt Securities of Service Properties Trust(5)
|
| | | | | | | | | | | | | | | | |
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Total
|
| | | | | | | | | | | | | | | | |
(1)
Not specified as to each class of securities to be registered, pursuant to General Instruction II.E. of Form S-3. An indeterminate aggregate initial offering price or number of the securities of each identified class is being registered as may from time to time be offered at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other securities, including under any anti-dilution provisions, or that are issued in units or represented by depositary shares. Securities registered hereunder may be sold separately or in any combination with other securities registered hereunder.
(2)
Exclusive of accrued interest, distributions and dividends, if any.
(3)
In reliance on Rules 456(b) and 457(r) under the Securities Act of 1933, as amended, or the Securities Act, Service Properties Trust, or the Registrant, is deferring payment of the registration fee.
(4)
Each depositary share will be issued under a deposit agreement and will be evidenced by a depositary receipt. In the event the Registrant elects to offer to the public fractional interests in preferred shares of beneficial interest registered hereunder, depositary receipts will be distributed to those persons purchasing such fractional interests, and preferred shares of beneficial interest will be issued to the depositary under the deposit agreement. No separate consideration will be received for the depositary shares.
(5)
There are being registered hereunder guarantees of the debt securities of the Registrant by certain of the Registrant’s subsidiaries listed in the “Subsidiary Guarantor Registrants” table below. No separate consideration will be paid in respect of such guarantees. Pursuant to Rule 457(n) under the Securities Act, no separate registration fee is payable in respect of such guarantees.
SUBSIDIARY GUARANTOR REGISTRANTS(1)
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Exact Name of Registrant as Specified in its Charter
|
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State or
Jurisdiction of Incorporation or Organization |
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Entity Type
|
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IRS Employer
Identification Number |
|
| Banner NewCo LLC | | |
Delaware
|
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Limited liability company
|
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84-3069989
|
|
| Cambridge TRS, Inc. | | |
Maryland
|
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Corporation
|
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45-4167445
|
|
| Harbor Court Associates, LLC | | |
Maryland
|
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Limited liability company
|
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56-2550257
|
|
| Highway Ventures Borrower LLC | | |
Delaware
|
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Limited liability company
|
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84-3373977
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| Highway Ventures LLC | | |
Delaware
|
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Limited liability company
|
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84-3373884
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| Highway Ventures Properties LLC | | |
Maryland
|
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Limited liability company
|
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26-0240108
|
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| Highway Ventures Properties Trust | | |
Maryland
|
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Real estate investment trust
|
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26-0239999
|
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| HPT Cambridge LLC | | |
Massachusetts
|
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Limited liability company
|
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04-6148511
|
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| HPT Clift TRS LLC | | |
Maryland
|
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Limited liability company
|
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82-4109793
|
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| HPT CW MA Realty LLC | | |
Maryland
|
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Limited liability company
|
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85-1552858
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| HPT CW MA Realty Trust | | |
Massachusetts
|
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Nominee Trust
|
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46-2440496
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| HPT CY TRS, Inc. | | |
Maryland
|
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Corporation
|
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46-1213113
|
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| HPT Geary ABC Holdings LLC | | |
Maryland
|
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Limited liability company
|
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46-1920850
|
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| HPT Geary Properties Trust | | |
Maryland
|
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Real estate investment trust
|
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46-2080511
|
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| HPT IHG Chicago Property LLC | | |
Maryland
|
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Limited liability company
|
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84-2997973
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| HPT IHG GA Properties LLC | | |
Maryland
|
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Limited liability company
|
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20-2870357
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| HPT IHG-2 Properties Trust | | |
Maryland
|
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Real estate investment trust
|
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20-1997811
|
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| HPT IHG-3 Properties LLC | | |
Maryland
|
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Limited liability company
|
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20-3947942
|
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| HPT SN Holding, Inc. | | |
New York
|
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Corporation
|
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13-5648107
|
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| HPT State Street TRS LLC | | |
Maryland
|
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Limited liability company
|
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84-2998086
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| HPT Suite Properties Trust | | |
Maryland
|
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Real estate investment trust
|
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04-3397210
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| HPT TA Properties LLC | | |
Maryland
|
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Limited liability company
|
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20-8260669
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| HPT TA Properties Trust | | |
Maryland
|
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Real estate investment trust
|
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20-8260357
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| HPT TRS IHG-2, Inc. | | |
Maryland
|
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Corporation
|
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20-2131948
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| HPT TRS Inc. | | |
Maryland
|
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Corporation
|
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04-3548096
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| HPT TRS MRP, Inc. | | |
Maryland
|
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Corporation
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27-4654560
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| HPT TRS SPES II, Inc. | | |
Maryland
|
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Corporation
|
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43-2012365
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| HPT TRS WYN, Inc. | | |
Maryland
|
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Corporation
|
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46-0781608
|
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| HPT Wacker Drive TRS LLC | | |
Maryland
|
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Limited liability company
|
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84-2998217
|
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| HPTCY Properties Trust | | |
Maryland
|
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Real estate investment trust
|
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04-3308179
|
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| HPTMI Hawaii, Inc. | | |
Delaware
|
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Corporation
|
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04-3563876
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| HPTMI Properties Trust | | |
Maryland
|
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Real estate investment trust
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04-3360772
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| HPTWN Properties Trust | | |
Maryland
|
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Real estate investment trust
|
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04-3308198
|
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| Royal Sonesta, Inc. | | |
Louisiana
|
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Corporation
|
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72-0803191
|
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| SVC Gatehall Drive TRS LLC | | |
Maryland
|
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Limited liability company
|
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86-1396045
|
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| SVC Holdings LLC | | |
Maryland
|
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Limited liability company
|
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84-4879602
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| SVC Jersey City TRS LLC | | |
Maryland
|
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Limited liability company
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85-3494714
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| SVC Morris Plains TRS LLC | | |
Maryland
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Limited liability company
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85-3494969
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| SVC Nanuet TRS LLC | | |
Maryland
|
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Limited liability company
|
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85-3495195
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|
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Exact Name of Registrant as Specified in its Charter
|
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State or
Jurisdiction of Incorporation or Organization |
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Entity Type
|
| |
IRS Employer
Identification Number |
|
| SVC NJ TRS LLC | | |
Maryland
|
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Limited liability company
|
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85-2484541
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| SVC Randolph Street TRS LLC | | |
Maryland
|
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Limited liability company
|
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85-3500521
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| SVC Redondo Beach TRS LLC | | |
Maryland
|
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Limited liability company
|
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85-3506957
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| SVCN 1 LLC | | |
Delaware
|
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Limited liability company
|
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20-1262089
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| SVCN 2 LLC | | |
Delaware
|
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Limited liability company
|
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20-2928350
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| SVCN 3 LLC | | |
Delaware
|
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Limited liability company
|
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20-3118006
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| SVCN 4 LLC | | |
Delaware
|
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Limited liability company
|
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84-3069763
|
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| SVCN 5 LLC | | |
Delaware
|
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Limited liability company
|
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84-3069896
|
|
(1)
One or more of the above registrants, each a Subsidiary Guarantor Registrant, may fully and unconditionally guarantee on a joint and several basis any series of debt securities of Service Properties Trust offered by the prospectus contained as part of this registration statement as set forth in a related prospectus supplement.
The address, including zip code, of each Subsidiary Guarantor Registrant’s principal executive offices is Two Newton Place, 255 Washington Street, Suite 300, Newton, Massachusetts 02458-1634 and the telephone number of each Subsidiary Guarantor Registrant’s executive office is (617) 964-8389.
The address, including zip code, of the agent for service for each of the Subsidiary Guarantor Registrants is Brian E. Donley, Chief Financial Officer and Treasurer of Service Properties Trust, Two Newton Place, 255 Washington Street, Suite 300, Newton Massachusetts 02458-1634, and the telephone number of each Subsidiary Guarantor Registrant’s agent for service is (617) 964-8389.
PROSPECTUS
SERVICE PROPERTIES TRUST
Debt Securities, Common Shares of Beneficial Interest,
Preferred Shares of Beneficial Interest, Depositary Shares and Warrants
Preferred Shares of Beneficial Interest, Depositary Shares and Warrants
Guarantees of Debt Securities of Service Properties Trust by Subsidiary Guarantors
Service Properties Trust, or we, us or our, or our selling security holders may offer, issue and sell, from time to time, in one or more offerings:
•
debt securities;
•
guarantees by the Subsidiary Guarantors of debt securities of Service Properties Trust;
•
common shares of beneficial interest;
•
preferred shares of beneficial interest;
•
depositary shares; and
•
warrants.
The securities described in this prospectus may be offered and sold separately or in any combination, and may include convertible or exchangeable securities.
This prospectus describes some of the general terms that may apply to these securities. The debt securities may be fully and unconditionally guaranteed on a joint and several basis by one or more of our wholly-owned subsidiaries, as described in this prospectus. The specific amounts and terms of any securities to be offered, issued or sold, and the identity of any selling security holders, will be described in the applicable prospectus supplement. The applicable prospectus supplement may also add to, update or change information contained in this prospectus. You should carefully read this prospectus and any accompanying prospectus supplement as well as the documents incorporated by reference in such documents before you decide to invest in any of these securities.
We or our selling security holders may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, on a continuous or delayed basis. The prospectus supplement for each offering will describe the terms of the plan of distribution and set forth the names of any underwriters, dealers or agents involved in the sale of the securities. Unless otherwise set forth in the applicable prospectus supplement, we will not receive any proceeds from the sale of securities sold by any selling security holder.
Our common shares of beneficial interest are listed on The Nasdaq Stock Market LLC, or Nasdaq, under the symbol “SVC.” If any other securities offered by this prospectus will be listed on a securities exchange, such listing will be described in the applicable prospectus supplement.
Investment in our securities involves risk, including those described under “Risk Factors” beginning on page 1 of this prospectus. You should carefully read and consider these risk factors and the risk factors included in the reports that we file under the Securities Exchange Act of 1934, as amended, in any prospectus supplement relating to specific offerings of securities and in other documents that we file with the Securities and Exchange Commission.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is August 20, 2021.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
References in this prospectus to “we,” “us,” “our” or “SVC” mean Service Properties Trust and its consolidated subsidiaries, unless the context otherwise requires. References in this prospectus to “Subsidiary Guarantors” means one or more of our wholly-owned subsidiaries that are listed as subsidiary guarantor registrants in the registration statement of which this prospectus forms a part.
This prospectus is part of an “automatic shelf” registration statement that we filed with the Securities and Exchange Commission, or the SEC, as a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act of 1933, as amended, or the Securities Act. Under this shelf registration process, we or our selling security holders may, from time to time, offer, issue and sell any of the securities or any combination of the securities described in this prospectus in such amounts and on such terms as set forth in a prospectus supplement in one or more offerings.
This prospectus provides you with a general description of the securities that may be offered, which is not meant to be a complete description of each security. Each time we offer, issue or sell securities hereunder, or any selling security holder offers or sells securities hereunder, we or such selling security holder, as applicable, will provide a prospectus supplement that contains specific information about the amounts and terms of that offering. The prospectus supplement may also add to, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the headings “Where You Can Find More Information” and “Information Incorporated By Reference.” If there is any inconsistency between the information in this prospectus and any applicable prospectus supplement, you should rely on the information in the applicable prospectus supplement.
You should rely only on the information provided or incorporated by reference in this prospectus or any relevant prospectus supplement. We have not authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. Neither we nor any selling security holder will make an offer of the securities in any jurisdiction where it is unlawful. You should assume that the information in this prospectus and any relevant prospectus supplement, as well as the information in any document incorporated or deemed to be incorporated into this prospectus and any relevant prospectus supplement is accurate only as of the date of the documents containing the information.
i
OUR COMPANY
We are a real estate investment trust, or REIT, organized under Maryland law, that owns hotels and net lease service-oriented retail properties. As of June 30, 2021, we owned 1,100 properties in 47 states, the District of Columbia, Canada and Puerto Rico.
Our principal executive offices are located at Two Newton Place, 255 Washington Street, Suite 300, Newton, Massachusetts 02458-1634, and our telephone number is (617) 964-8389. Our website is www.svcreit.com. The content of our website, and any information that is linked to our website (other than our filings with the SEC that are expressly incorporated by reference, as set forth under “Information Incorporated by Reference”), is not incorporated by reference in this prospectus, and you should not consider it a part of this prospectus.
RISK FACTORS
Investing in our securities involves certain risks. You should carefully review the risk factors contained under the heading “Risk Factors” in our most recent Annual Report on Form 10-K, or our Annual Report, any subsequent Quarterly Report on Form 10-Q or Current Report on Form 8-K filed (and not furnished) by us with the SEC subsequent to the last day of the fiscal year covered by our most recent Annual Report on Form 10-K, which risk factors are incorporated by reference in this prospectus, the information contained under the heading “Warning Concerning Forward-Looking Statements” in this prospectus or under any similar heading in any applicable prospectus supplement or in any document incorporated herein or therein by reference, any specific risk factors discussed under the caption “Risk Factors” in any applicable prospectus supplement or in any document incorporated herein or therein by reference and the other information contained in, or incorporated by reference in, this prospectus or any applicable prospectus supplement before making an investment decision. If any such risks occur, our business, financial condition or results of operations could be materially harmed, the market price of our securities could decline and you could lose all or part of your investment.
1
WARNING CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus, including the documents that are incorporated herein by reference, contains statements that constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 and other securities laws. Also, whenever we use words such as “believe”, “expect”, “anticipate”, “intend”, “plan”, “estimate”, “will”, “may” and negatives or derivatives of these or similar expressions, we are making forward-looking statements. These forward-looking statements are based upon our present intent, beliefs or expectations, but forward-looking statements are not guaranteed to occur and may not occur. Forward-looking statements included or incorporated by reference into this prospectus relate to various aspects of our business, including:
•
The duration and severity of the COVID-19 pandemic and its impact on us and our managers and tenants, and on our and their ability to operate throughout the pandemic and its aftermath,
•
Our expectation about the ability of subsidiaries of Sonesta Holdco Corporation, or Sonesta, to operate the hotels that have been or may be transitioned and rebranded to it,
•
The likelihood and extent to which our managers and tenants will pay the contractual amounts of returns, rents or other obligations due to us,
•
Our ability to maintain sufficient liquidity during the duration of the COVID-19 pandemic and any resulting economic conditions,
•
Potential defaults on, or non-renewal of, leases by our tenants,
•
Decreased rental rates or increased vacancies,
•
Our sales and acquisitions of properties,
•
Our policies and plans regarding investments, financings and dispositions,
•
Our ability to pay interest on and principal of our debt,
•
Our ability to pay distributions to our shareholders and to sustain the amount of such distributions,
•
Our ability to raise or appropriately balance the use of debt or equity capital,
•
Our intent to make improvements to certain of our properties,
•
Our ability to engage and retain qualified managers and tenants for our hotels and net lease properties on satisfactory terms,
•
Our ability to diversify our sources of rents and returns that improve the security of our cash flows,
•
The future availability of borrowings under our revolving credit facility,
•
Our credit ratings,
•
Our expectation that we benefit from our relationships with The RMR Group LLC, or RMR LLC, Sonesta and TravelCenters of America Inc., or TA,
•
Our qualification for taxation as a REIT,
•
Changes in federal or state tax laws, and
•
Other matters.
Our actual results may differ materially from those contained in or implied by our forward-looking statements. Forward-looking statements involve known and unknown risks, uncertainties and other factors, some of which are beyond our control. Risks, uncertainties and other factors that could have a material adverse effect on our forward-looking statements and upon our business, results of operations, financial condition, funds from operations, normalized funds from operations, cash flows, liquidity and prospects include, but are not limited to:
•
The impact of conditions in the economy, including the COVID-19 pandemic and any resulting economic conditions, and the capital markets on us and our managers and tenants,
2
•
Competition within the real estate, hotel, transportation and travel center and other industries in which our managers and tenants operate, particularly in those markets in which our properties are located,
•
Compliance with, and changes to, federal, state and local laws and regulations, accounting rules, tax laws and similar matters,
•
Limitations imposed on our business and our ability to satisfy complex rules in order for us to maintain our qualification for taxation as a REIT for U.S. federal income tax purposes,
•
Acts of terrorism, outbreaks of pandemics, including the COVID-19 pandemic, or other man-made or natural disasters beyond our control, and
•
Actual and potential conflicts of interest with our related parties, including our Managing Trustees, TA, Sonesta, RMR LLC and others affiliated with them.
For example:
•
Our ability to make future distributions to our shareholders and to make payments of principal and interest on our indebtedness depends upon a number of factors, including our future earnings, the capital costs we incur to acquire and maintain our properties and our working capital requirements. We may be unable to pay our debt obligations or to increase or maintain our current rate of distributions on our common shares and future distributions may be reduced or eliminated,
•
Sonesta operates many of our hotels and we may transition additional hotels to Sonesta. Transitioning hotels to another operator is disruptive to the hotels’ operations and requires significant capital investments. If Sonesta were to fail to provide quality services and amenities or to maintain a quality brand, our income from these properties may be adversely affected. There can be no assurance that Sonesta can operate the hotels as effectively or for returns at levels that could otherwise be achieved by other large well known hotel companies. Further, if we were required to replace Sonesta, we could experience significant disruptions in operations at the applicable properties, which could reduce our income and cash flows from, and the value of, those properties. We have no guarantee or security deposit under our Sonesta agreement. Accordingly, the returns we receive from our hotels managed under our Sonesta agreement are dependent upon the financial results of those hotel operations and we may continue to receive amounts from Sonesta that are less than the contractual minimum returns stated in our Sonesta agreement or we may be requested to fund operating losses for our Sonesta hotels. Further, we own an approximately 34% ownership interest in Sonesta. If Sonesta experiences losses, or requires additional capital, Sonesta may request we fund our share through the contribution of additional capital and if we do not fund those contributions, our equity interest in Sonesta will be diluted if Sonesta obtains such contributions from other shareholders,
We cannot be sure of the future financial performance of our properties, or regarding our managers’, tenants’ or guarantors’ future actions or their abilities or willingness to pay contracted amounts owed to us. If other operators or guarantors do not honor their obligations, we may seek to terminate our arrangements with them or other actions to enforce our rights,
•
Recent improvements in lodging demand may not be sustained, may stall or could decline,
•
If general economic activity in the country declines, the operating results of certain of our properties may decline, the financial results of our managers and our tenants may suffer and these managers and tenants may be unable to pay our returns or rents. Also, depressed operating results from our properties for extended periods may result in the operators of some or all of our properties becoming unable or unwilling to meet their obligations,
•
Hotel and other competitive forms of temporary lodging supply have been increasing and may affect our hotel operators’ ability to grow average daily rate, or ADR, and occupancy, and ADR and occupancy could decline due to increased competition which may cause our hotel operators to become unable to pay our returns or rents,
•
If the current level of commercial activity in the country declines, including as a result of the COVID-19 pandemic, if the price of diesel fuel increases significantly, if fuel conservation measures
3
are increased, if freight business is directed away from trucking, if TA is unable to effectively compete or operate its business, if fuel efficiencies, the use of alternative fuels or transportation technologies reduce the demand for products and services TA sells or for various other reasons, TA may become unable to pay current and deferred rents due to us,
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Our ability to grow our business and increase our distributions depends in large part upon our ability to buy properties that generate returns or can be leased for rents which exceed our operating and capital costs. We may be unable to identify properties that we want to acquire and we may fail to reach agreement with the sellers and complete the purchases of any properties we do want to acquire. In addition, any properties we may acquire may not generate returns or rents which exceed our operating and capital costs,
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We believe that our portfolio agreements include diverse groups of properties and that this diversity may improve operating results that might be realized from a more concentrated group of properties. However, our operator concentration with respect to our hotel operations has recently increased as a result of our transitioning of a majority of our hotels to Sonesta management, and our travel center properties continue to be concentrated with TA. As a result, our operating results may not improve,
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Current market conditions may cause the process of selling properties to continue to take longer than previously expected. We may not complete the sales of any properties we currently plan to sell, and we may determine to sell fewer properties. Also, we may sell assets at prices that are less than we expect and less than their carrying values and we may incur losses on these sales or with respect to these assets,
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Contingencies in our pending sale agreements may not be satisfied and any expected sales and any related management or lease arrangements we expect to enter may not occur, may be delayed or the terms of such transactions or arrangements may change,
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Our statements relating to cash and cash equivalents, available amounts under our revolving credit facility and security deposits and guarantees covering some of our minimum returns and rents may imply that we have sufficient working capital and liquidity. The amounts we receive from our operators may be insufficient to operate our business profitably. Certain tenants have requested and we have granted certain rent relief and these requests could increase. In addition, our managers and tenants may not be able to fund minimum returns and rents due to us from operating our properties or from other resources. In the past and currently, certain of our tenants and managers have in fact not paid the minimum amounts due to us from their operations of our leased or managed properties and we may be required to fund hotel operating losses and working capital for our hotels. Further, our properties require significant funding for capital improvements and other matters. Accordingly, we may not have sufficient working capital or liquidity,
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Continued availability of borrowings under our revolving credit facility is subject to our satisfying certain financial covenants and other credit facility conditions. The ratio of income available for debt service to debt service was below the 1.5x requirement under our public debt covenants as of June 30, 2021. We are not permitted under our debt agreements to incur additional debt while this ratio is below 1.5x. As a precautionary measure, in January 2021, we fully drew down on our $1.0 billion credit facility to maintain our financial flexibility. Our ability to incur debt may be limited for an extended period of time. We cannot be certain how long our ratio of income available for debt service to debt service may remain below 1.5x. We may not have any immediately available borrowing capacity to meet any funding needs beyond our cash on hand if our operating results and financial condition are significantly and adversely impacted by current economic conditions or otherwise. If we cannot incur additional debt, we may be forced to raise additional sources of capital or take other measures to maintain adequate liquidity and we may not succeed in raising any capital we may need,
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We expect the borrowings under our revolving credit facility to strengthen our financial position; however, we may not obtain the financial flexibility we expect due to the ongoing COVID-19 pandemic or for other reasons. We can provide no assurance regarding the duration and severity of the economic conditions resulting from the COVID-19 pandemic and its impact on us and our operators,
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We may be unable to repay our debt obligations when they become due,
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We intend to conduct our business activities in a manner that will afford us reasonable access to capital for investment and financing activities. However, we may not succeed in this regard and we may not have reasonable access to capital, including due to the COVID-19 pandemic and the resulting economic conditions. If challenging market conditions last for a long period or worsen, our managers and tenants may experience liquidity constraints and as a result may be unable or unwilling to pay returns or rents to us and our ability to operate our business effectively may be challenged,
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We currently expect to fund a significant amount of capital expenditures in 2021. The cost of capital projects may be greater than we anticipate and operating results at our hotels may decline as a result of having rooms out of service to complete such improvements,
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Actual costs under our revolving credit facility or other floating rate debt will be higher than LIBOR plus a premium because of fees and expenses associated with such debt,
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The premiums used to determine the interest rate and facility fee payable on our revolving credit facility are based on our credit ratings. Changes in our credit ratings may cause the interest and fees we pay to increase,
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We have the option to extend the maturity date of our revolving credit facility upon payment of a fee and meeting other conditions; however, the applicable conditions may not be met,
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The business and property management agreements between us and RMR LLC have continuing 20 year terms. However, those agreements permit early termination in certain circumstances. Accordingly, we cannot be sure that these agreements will remain in effect for continuing 20 year terms,
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We believe that our relationships with our related parties, including RMR LLC, The RMR Group Inc., TA, Sonesta and others affiliated with them may benefit us and provide us with competitive advantages in operating and growing our business. However, the advantages we believe we may realize from these relationships may not materialize, and
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Two of our subsidiaries have initiated arbitration proceedings against Marriott International, Inc., or Marriott, and several of its subsidiaries after Marriott challenged the efficacy of the termination of our agreement with them. The results of arbitration proceedings are difficult to predict and we can provide no assurances regarding such results. Even if we are successful in such proceedings, the pendency and conduct of such proceedings may be expensive and distracting to our management, and could be disruptive to our operations.
Currently unexpected results could occur due to many different circumstances, some of which are beyond our control, such as pandemics, including the COVID-19 pandemic, acts of terrorism, natural disasters, changes in our managers’ or tenants’ revenues or expenses, changes in our managers’ or tenants’ financial conditions, the market demand for hotel rooms or the goods and services provided at our properties or changes in capital markets or the economy generally.
The information contained elsewhere in this prospectus and in our Annual Report or in our other filings with the SEC, including under the caption “Risk Factors”, or incorporated herein or therein, identifies other important factors that could cause differences from our forward-looking statements. Our filings with the SEC are available on the SEC’s website at www.sec.gov.
You should not place undue reliance upon our forward-looking statements.
Except as required by law, we do not intend to update or change any forward-looking statements as a result of new information, future events or otherwise.
STATEMENT CONCERNING LIMITED LIABILITY
The Amended and Restated Declaration of Trust establishing Service Properties Trust dated August 21, 1995, as amended and supplemented, as filed with the State Department of Assessments and Taxation of Maryland, provides that no trustee, officer, shareholder, employee or agent of Service Properties Trust shall be held to any personal liability, jointly or severally, for any obligation of, or claim against, Service Properties Trust. All persons dealing with Service Properties Trust in any way shall look only to the assets of Service Properties Trust for the payment of any sum or the performance of any obligation.
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USE OF PROCEEDS
Unless otherwise described in a prospectus supplement, we intend to use the net proceeds that we receive from the sale of any securities covered by this prospectus for general business purposes, which may include acquiring and investing in additional properties and the repayment of borrowings under our revolving credit facility or other debt. Until we apply the proceeds from a sale of securities covered by this prospectus to their stated purposes, we may invest those proceeds in short term investments, including repurchase agreements, some or all of which may not be investment grade.
Unless otherwise set forth in the applicable prospectus supplement, we will not receive any of the proceeds of the sale by any selling security holder of securities covered by this prospectus.
DESCRIPTION OF DEBT SECURITIES AND RELATED GUARANTEES
References in this “Description of Debt Securities and Related Guarantees” section to “we,” “us,” “our” or “SVC” mean Service Properties Trust and not any of its consolidated subsidiaries, unless the context otherwise requires. The following is a summary of some general terms and provisions of debt securities that we may offer by this prospectus and any guarantees of such debt securities by one or more of the Subsidiary Guarantors related thereto. Because it is a summary, it does not contain all of the information that may be important to you. If you want more information, you should read our Indenture dated February 3, 2016, as from time to time hereafter amended, supplemented or otherwise modified, or our 2016 Indenture, or the forms of indentures which are filed as exhibits to the registration statement of which this prospectus is a part. If we issue debt securities, we will file any additional final indentures, and any supplemental indentures or officer’s certificates related to the particular series of debt securities issued and any related guarantees, with the SEC, and you should read those documents for further information about the terms and provisions of such debt securities and any related guarantees. See “Where You Can Find More Information.” This summary is also subject to and qualified by reference to the descriptions of the particular terms of our debt securities and any related guarantees to be described in the applicable prospectus supplement. The applicable prospectus supplement may add to, update or change the terms of such debt securities or such guarantees from those described below.
The debt securities sold under this prospectus will be direct obligations of SVC and, unless otherwise stated in a prospectus supplement, will not be obligations of any of our subsidiaries. Such debt obligations may be secured or unsecured, may be senior or subordinated indebtedness and may be fully and unconditionally guaranteed on a joint and several basis by one or more of the Subsidiary Guarantors. Our debt securities and any related guarantees will be issued under one or more indentures between us and a trustee, including, if applicable, our 2016 Indenture. Any indenture will be subject to and governed by the Trust Indenture Act of 1939, as amended, or the Trust Indenture Act. The statements made in this prospectus relating to our 2016 Indenture and any future indentures and the debt securities and any related guarantees to be issued under the indentures are summaries of certain anticipated provisions of the indentures and are not complete.
General
We may issue debt securities that rank “senior,” “senior subordinated” or “junior subordinated,” and which may be convertible into another security. The debt securities that we refer to as “senior” will be direct obligations of SVC and will rank equally and ratably in right of payment with our other indebtedness that is not subordinated, without giving effect to collateral arrangements. We may issue debt securities that will be subordinated in right of payment to the prior payment in full of our senior debt, as defined in the applicable prospectus supplement, and may rank equally and ratably with our other senior subordinated indebtedness, if any, without giving effect to collateral arrangements. We refer to these as “senior subordinated” securities. We may also issue debt securities that may be subordinated in right of payment to the senior subordinated securities. These would be “junior subordinated” securities. We have filed with the registration statement, of which this prospectus is a part, three separate forms of indenture, one for the senior securities (including our 2016 Indenture), one for the senior subordinated securities and one for the junior subordinated securities.
We may issue debt securities without limit as to aggregate principal amount, in one or more series, in each case as we establish in one or more supplemental indentures. We need not issue all debt securities of
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one series at the same time. Unless we otherwise provide, we may reopen a series, without the consent of the holders of the series, for issuances of additional securities of that series.
Our 2016 Indenture provides, and we anticipate that any indenture will provide, that we may, but need not, designate more than one trustee under an indenture, each with respect to one or more series of debt securities. Any trustee under any indenture may resign or be removed with respect to one or more series of debt securities, and we may appoint a successor trustee to act with respect to any such series.
The applicable prospectus supplement will describe the specific terms relating to the series of debt securities we will offer, including, where applicable, the following:
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the title and series designation and whether they are senior securities, senior subordinated securities or junior subordinated securities;
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the aggregate principal amount of the debt securities offered and any limit on the aggregate principal amount of that series that may be authenticated and delivered;
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the percentage of the principal amount at which we will issue the debt securities and, if other than the principal amount of the debt securities, the portion of the principal amount of the debt securities payable upon maturity of the debt securities;
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if convertible, the initial conversion price, the conversion period and any other terms governing such conversion;
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the stated maturity date;
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any fixed or variable interest rate or rates per annum;
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whether such interest will be payable in cash or additional debt securities of the same series or will accrue and increase the aggregate principal amount outstanding of such series;
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the place where principal, premium, if any, and interest will be payable and where the debt securities can be surrendered for transfer, exchange or conversion;
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the date from which interest may accrue and any interest payment dates and any related record dates;
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the terms of any guarantee of the debt securities and the identity of any guarantor or guarantors of such debt securities;
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any sinking fund requirements;
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any provisions for redemption or repurchase, including the redemption or repurchase price;
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whether the debt securities are denominated or payable in U.S. dollars, a foreign currency or units of two or more currencies;
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whether the amount of payments of principal of or premium, if any, or interest on the debt securities may be determined with reference to an index, formula or other method and the manner in which such amounts shall be determined;
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the events of default and covenants of the debt securities, to the extent different from or in addition to those described in this prospectus;
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whether we will issue the debt securities in certificated or book-entry form;
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whether the debt securities will be in registered or bearer form and, if in registered form, the denominations, if other than $2,000 and integral multiples of $1,000 in excess thereof, or, if in bearer form, the denominations and terms and conditions relating thereto;
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whether we will issue any of the debt securities in permanent global form and, if so, the terms and conditions, if any, upon which interests in the global security may be exchanged, in whole or in part, for the individual debt securities represented by the global security;
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any addition or change to the provisions relating to the defeasance or covenant defeasance provisions of, or the satisfaction and discharge of, the debt securities;
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whether we will pay additional amounts on the debt securities in respect of any tax, assessment or governmental charge and, if so, whether we will have the option to redeem the debt securities instead of making this payment;
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the subordination provisions, if any, relating to the debt securities;
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if the debt securities are to be issued upon the exercise of warrants, the time, manner and place for such debt securities to be authenticated and delivered;
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any restriction or condition on the transferability of debt securities;
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any addition or change to the provisions related to compensation and reimbursement of the trustee which applies to the debt securities;
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any addition or change to the provisions related to supplemental indentures both with and without the consent of the holders;
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provisions, if any, granting special rights to holders upon the occurrence of specified events;
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any addition or change to the events of default which applies to any debt securities and any change in the right of the trustee or the requisite holders of such debt securities to declare the principal amount thereof due and payable pursuant to the indenture;
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any addition or change to the covenants set forth in the indenture, or described in this prospectus or any prospectus supplement with respect to such series of debt securities; and
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any other terms of debt securities of such series (which terms will not be inconsistent with the provisions of the Trust Indenture Act, but may modify, amend, supplement or delete any of the terms of the indenture, including those described in this prospectus or any prospectus supplement, with respect to such series).
We will describe in the applicable prospectus supplement any material U.S. federal income tax considerations applicable to the debt securities offered by such prospectus supplement.
We may issue debt securities at less than the principal amount payable at maturity. We refer to these securities as “original issue discount” securities. If material or applicable, we will describe in the applicable prospectus supplement special U.S. federal income tax considerations applicable to original issue discount securities.
Except as may be described in any prospectus supplement, our 2016 Indenture does not, and any future indenture will not, contain any other provisions that would limit our ability to incur indebtedness or that would afford holders of the debt securities protection in the event of a highly leveraged or similar transaction involving us or in the event of a change in control. You should review carefully the applicable prospectus supplement for information with respect to events of default and covenants applicable to the debt securities being offered.
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable prospectus supplement, we will issue debt securities of any series that are registered securities in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof, other than global securities, which may be of any denomination.
Unless otherwise specified in the applicable prospectus supplement, we will pay the interest, principal and any premium at the corporate trust office of the trustee or, at our option, we may make payment of interest by check mailed to the address of the person entitled to the payment as it appears in the applicable register or by wire transfer of funds to that person at an account maintained within the United States or, in the case of global securities, in accordance with the procedures of the depositary for such securities.
If we do not punctually pay or otherwise provide for interest on any interest payment date, the defaulted interest will be paid either:
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to the person in whose name the debt security is registered at the close of business on a special record date the trustee will fix; or
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in any other lawful manner, all as the applicable indenture describes.
You may have your debt securities divided into more debt securities of smaller authorized denominations or combined into fewer debt securities of larger authorized denominations, as long as the total principal amount is not changed. We call this an “exchange.”
You may exchange or transfer debt securities at the office of the applicable trustee. The trustee acts as our agent for registering debt securities in the names of holders and transferring debt securities. We may change this appointment to another entity or perform this role ourselves. The entity performing the role of maintaining the list of registered holders is called the “registrar.” The registrar will also perform transfers.
You will not be required to pay a service charge to transfer or exchange debt securities, but you may be required to pay for any tax or other governmental charge associated with the exchange or transfer. The registrar will make the transfer or exchange only if it is satisfied with your proof of ownership.
Merger, Consolidation or Sale of Assets
We may not consolidate with or merge into any other person or convey, transfer or lease all or substantially all of our properties and assets to any other person (other than one of our direct or indirect wholly owned subsidiaries), and we may not permit any other person (other than one of our direct or indirect wholly owned subsidiaries) to consolidate with or merge into us, unless:
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we are the surviving entity or, in case we consolidate with or merge into another person, the person formed by such consolidation or merger is, or in case we convey, transfer or lease all or substantially all of our properties and assets to any person, such acquiring person is, an entity organized and validly existing under the laws of the United States, any state thereof or the District of Columbia and expressly assumes, by a supplemental indenture executed and delivered to the trustee, in form satisfactory to the trustee, the due and punctual payment of the principal of and any premium and interest on all applicable debt securities issued under the applicable indenture and the performance or observance of every covenant of the applicable indenture on our part to be performed or observed;
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immediately after giving effect to such transaction, and treating any indebtedness which becomes an obligation of us or any of our subsidiaries as a result of such transaction as having been incurred by us or such subsidiary at the time of such transaction, no event of default, and no event which, after notice or lapse of time or both, would become an event of default, in each case under the applicable indenture, has happened and is continuing; and
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we have delivered to the trustee an officer’s certificate and an opinion of counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture complies with the applicable indenture provisions described in this paragraph and that all conditions precedent provided for in the applicable indenture relating to such transaction have been complied with.
Events of Default and Related Matters
Events of Default. The term “event of default” for any series of debt securities means any of the following:
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we do not pay the principal of or any premium on a debt security of that series when due;
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we do not pay interest on a debt security of that series within 30 days after its due date;
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we do not deposit any sinking fund payment for that series within 30 days after its due date;
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we remain in breach of any other covenant of the applicable indenture (other than a covenant added to the indenture solely for the benefit of another series) for 60 days after we receive a notice of default specifying the breach and requiring that it be remedied. Only the trustee or holders of at least a majority in principal amount of outstanding debt securities of the affected series may send the notice;
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we experience specified events of bankruptcy, insolvency or reorganization; or
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any other event of default described in the applicable prospectus supplement occurs.
Remedies if an Event of Default Occurs. If an event of default has occurred and has not been cured, the trustee or the holders of not less than a majority in principal amount of the outstanding debt securities of the affected series may declare the entire principal amount of all the debt securities of that series to be due and payable immediately. If an event of default occurs because we experience specified events of bankruptcy, insolvency or reorganization, the principal amount of all the debt securities of that series will be automatically accelerated and become immediately due and payable, without any action by the trustee or any holder. At any time after the trustee or the holders have accelerated any series of debt securities, but before a judgment or decree for payment of the money due has been obtained, the holders of a majority in principal amount of the outstanding debt securities of the affected series may, under certain circumstances, rescind and annul such acceleration.
Except in cases of default where the trustee has some special duties, the trustee is not required to take any action under the applicable indenture at the request of any holders unless the holders offer the trustee reasonable protection from expenses and liability. We refer to this as an “indemnity.” If reasonable indemnity is provided, the holders of not less than a majority in principal amount of the outstanding debt securities of the relevant series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee. These majority holders may also direct the trustee in performing any other action under the applicable indenture, subject to certain limitations.
Before you bypass the trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to the applicable indenture or debt securities issued under such indenture, the following must occur:
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you must give the trustee written notice that an event of default has occurred and is continuing;
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the holders of at least a majority in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee take action because of the default and must offer reasonable indemnity to the trustee against the cost and other liabilities of taking that action; and
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the trustee must have not taken action for 60 days after receipt of the notice, request and offer of indemnity and must have not received from the holders of a majority in principal amount of all outstanding debt securities of the relevant series other conflicting directions within such 60 day period.
However, you are entitled at any time to bring a lawsuit for the payment of money due on your debt security after its due date.
Every year we will furnish to the trustee a written statement by certain of our officers certifying that, to their best knowledge, we are in compliance with the applicable indenture and the debt securities, or else specifying any default.
Modification of an Indenture
There are three types of changes we can make to the indentures and our debt securities:
Changes Requiring Your Approval. First, we cannot make certain changes to the indentures and our debt securities without the approval of each holder of debt securities affected by the change. The following is a list of those types of changes:
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change the stated maturity of the principal of, or interest on, a debt security;
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reduce the principal of, or the rate of interest on, a debt security;
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reduce the amount of any premium due upon redemption;
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reduce the amount of principal of an original issue discount security payable upon acceleration of its maturity;
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change the currency or place of payment on a debt security;
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impair a holder’s right to sue for payment on or after the stated maturity of a debt security;
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in the case of a subordinated debt security, modify the subordination provisions of such debt security in a manner that is adverse to the holders;
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reduce the percentage of holders of debt securities whose consent is needed to modify or amend an indenture;
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reduce the percentage of holders of debt securities whose consent is needed to waive compliance with certain provisions of an indenture or certain defaults and their consequences;
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waive past defaults in the payment of principal of or premium, if any, or interest on the debt securities or in respect of any covenant or provision that cannot be modified or amended without the approval of each holder of the debt securities; or
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modify any of the foregoing provisions.
Changes Requiring Majority Approval. Second, certain changes require the approval of holders of not less than a majority in principal amount of the outstanding debt securities of the affected series. We require the same majority vote to obtain a waiver of a past default. However, we cannot obtain a waiver of a payment default or any other aspect of an indenture or the debt securities listed in the first category described above under “— Changes Requiring Your Approval” without the consent of each holder of debt securities affected by the waiver.
Changes Not Requiring Approval. Third, certain changes do not require any approval of holders of debt securities. These include:
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to evidence the assumption by a successor obligor of our obligations;
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to add to our covenants for the benefit of holders of debt securities of all or any series or to surrender any right or power conferred upon us;
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to add any additional events of default for the benefit of holders of all or any series of debt securities;
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to add to or change any provisions necessary to permit or facilitate the issuance of debt securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate the issuance of debt securities in uncertificated form;
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to add to, change or eliminate any of the provisions, so long as such addition, change or elimination does not apply to any debt security of any existing series of debt security entitled to the benefit of such provision or modify the rights of the holder of any such debt security with respect to such provision or such addition, change or elimination only becomes effective when there is no such security outstanding;
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to add guarantees of or to secure all or any series of the debt securities;
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to establish the forms or terms of debt securities of any series;
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to evidence and provide for the acceptance of appointment of a successor trustee;
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to cure any ambiguity, to correct or supplement any provision in the applicable indenture which may be defective or inconsistent with any other provision contained therein or to conform the terms of the indenture that are applicable to a series of debt securities to the description of the terms of such debt securities in the offering memorandum, prospectus supplement or other offering document applicable to such debt securities at the time of initial sale thereof;
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to permit or facilitate the defeasance or satisfaction and discharge of debt securities of any series; provided that such action does not adversely affect the interests of any holder of debt securities in any material respect;
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to prohibit the authentication and delivery of additional series of debt securities;
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to add to or change or eliminate any provision as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act;
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to comply with the rules of any applicable depositary; or
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to change anything that does not adversely affect the interests of the holders of debt securities of any series in any material respect.
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Further Details Concerning Approval. Debt securities are not considered outstanding, and therefore the holders thereof are not eligible to vote or consent or give their approval or take other action under the applicable indenture, if we have deposited or set aside in trust for you money for their payment or redemption or if we or one of our affiliates own them. Debt securities are also not considered to be outstanding and therefore the holders thereof are not eligible to vote or consent or give their approval or take other action under the applicable indenture if they have been fully defeased or discharged, as described below under “— Discharge, Defeasance and Covenant Defeasance — Discharge” or “— Full Defeasance.”
Discharge, Defeasance and Covenant Defeasance
Discharge. We may discharge our obligations to holders of any series of debt securities that have become due and payable or will become due and payable at their stated maturity within one year, or are to be called for redemption within one year, by depositing or causing to be deposited with the trustee, in trust, funds in the applicable currency in an amount sufficient to pay the debt securities of such series, including any premium and interest to the date of such deposit (in the case of debt securities which have become due and payable) or to such stated maturity or redemption date, as applicable.
Full Defeasance. We can, under particular circumstances, effect a full defeasance of any series of debt securities. By this we mean we can legally release ourselves from any payment or other obligations on the debt securities if, among other things, we put in place the arrangements described below to pay those debt securities and deliver certain certificates and opinions to the trustee:
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we must irrevocably deposit (or cause to be deposited), in trust, for the benefit of all direct holders of the debt securities of such series money or government obligations (or, in some circumstances, depository receipts representing such government obligations), or a combination thereof, that will provide funds in an amount sufficient to pay the debt securities of such series, including any premium and interest on the debt securities of such series at their stated maturity or applicable redemption date (a “government obligation” for these purposes means, with respect to any series of debt securities, securities that are not callable or redeemable at the option of the issuer thereof and are (1) direct obligations of the government that issued the currency in which such series is denominated (or, if such series is denominated in euros, the direct obligations of any government that is a member of the European Monetary Union) for the payment of which its full faith and credit is pledged or (2) obligations of a person controlled or supervised by and acting as an agency or instrumentality of such government the payment of which is unconditionally guaranteed as a full faith and credit obligation by such government); and
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we must deliver to the trustee a legal opinion stating that the current U.S. federal income tax law has changed or an Internal Revenue Service, or IRS, ruling has been issued, in each case to the effect that holders of the outstanding debt securities of such series will not recognize gain or loss for federal income tax purposes as a result of such full defeasance and will be subject to federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such full defeasance had not occurred.
Notwithstanding the foregoing, the following rights and obligations will survive full defeasance:
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your right to receive payments from the trust when payments are due;
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our obligations relating to registration and transfer of debt securities and lost or mutilated certificates; and
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our obligations to maintain a payment office and to hold moneys for payment in trust.
Covenant Defeasance. Under current U.S. federal income tax law, we can make the same type of deposit described above with respect to a series of debt securities and be released from the obligations imposed by most of the covenants with respect to such series and provisions of the applicable indenture with respect to such series, and we may omit to comply with those covenants and provisions without creating an event of default. This is called “covenant defeasance.”
If we accomplish covenant defeasance, the following provisions of an indenture and the debt securities of such series would no longer apply:
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most of the covenants applicable to such series of debt securities and any events of default for failure to comply with those covenants;
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any subordination provisions; and
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certain other events of default as set forth in any prospectus supplement.
Conversion and Exchange Rights
The terms and conditions, if any, upon which the debt securities are convertible into or exchangeable for common or preferred shares, other debt securities or other property will be set forth in the applicable prospectus supplement. Such terms will include whether the debt securities are convertible into or exchangeable for common or preferred shares, other debt securities or other property, the conversion or exchange price (or manner of calculation thereof), the conversion or exchange period, whether conversion or exchange will be at the option of the holders, the events requiring an adjustment of the conversion or exchange price, provisions affecting conversion or exchange in the event of the redemption of such debt securities and any restrictions on conversion or exchange, including restrictions directed at maintaining our qualification for taxation as a REIT under the Internal Revenue Code of 1986, as amended, or the Code.
Subordination
We will describe in the applicable prospectus supplement the terms and conditions, if any, upon which any series of senior subordinated securities or junior subordinated securities is subordinated to debt securities of another series or to our other indebtedness. The terms will include a description of:
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the indebtedness ranking senior to the debt securities being offered;
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the restrictions, if any, on payments to the holders of the debt securities being offered while a default with respect to the senior indebtedness is continuing;
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the restrictions, if any, on payments to the holders of the debt securities being offered following an event of default with respect to such debt securities; and
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provisions requiring holders of the debt securities being offered and any related guarantees to remit payments to holders of senior indebtedness.
Guarantees
To the extent provided in the applicable supplement to this prospectus, the debt securities issued and sold pursuant to this prospectus may be fully, unconditionally and irrevocably guaranteed on a joint and several basis by one or more of the Subsidiary Guarantors. Any such guarantee may be issued on an unsecured, secured, unsubordinated, senior subordinated or junior subordinated basis as provided in the applicable prospectus supplement. Any such guarantee will be issued under a supplement to the applicable indenture. We will more fully describe the terms of any guarantee of any of our debt securities in the applicable prospectus supplement relating to those debt securities.
Global Debt Securities
We may issue the debt securities of a series in whole or in part in the form of one or more registered global securities that we will deposit with a depositary or with a nominee for a depositary identified in the applicable prospectus supplement and registered in the name of such depositary or nominee. In such case, we will issue one or more registered global securities denominated in an amount equal to the aggregate principal amount of all of the debt securities of the series to be issued and represented by such registered global security or securities.
Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security may not be transferred except as a whole:
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by the depositary for such registered global security to its nominee;
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by a nominee of the depositary to the depositary or another nominee of the depositary; or
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by the depositary or its nominee to a successor of the depositary or a nominee of the successor.
The prospectus supplement relating to a series of debt securities will describe the specific terms of the depositary arrangement with respect to any portion of such series represented by a registered global security. We currently anticipate that the following provisions will apply to all depositary arrangements for debt securities:
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ownership of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary for the registered global security, those persons being referred to as “participants,” or persons that may hold interests through participants;
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upon the issuance of a registered global security, the depositary for the registered global security will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal amounts of the debt securities represented by the registered global security beneficially owned by the participants;
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any dealers, underwriters or agents participating in the distribution of the debt securities will designate the accounts to be credited; and
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ownership of any beneficial interest in the registered global security will be shown on, and the transfer of any ownership interest will be effected only through, records maintained by the depositary for the registered global security (with respect to interests of participants) and on the records of participants (with respect to interests of persons holding through participants).
The laws of some states may require that certain purchasers of securities take physical delivery of the securities in definitive form. These laws may limit the ability of those persons to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary for a registered global security, or its nominee, is the registered owner of the registered global security, the depositary or the nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the registered global security for all purposes under the applicable indenture. Except as set forth below, owners of beneficial interests in a registered global security:
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will not be entitled to have the debt securities represented by a registered global security registered in their names;
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will not receive or be entitled to receive physical delivery of the debt securities in the definitive form; and
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will not be considered the owners or holders of the debt securities under the applicable indenture.
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for the registered global security and, if the person is not a participant, on the procedures of a participant through which the person owns its interest, to exercise any rights of a holder under the applicable indenture.
We understand that under currently existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under an indenture, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take the action, and those participants would authorize beneficial owners owning through those participants to give or take the action or would otherwise act upon the instructions of beneficial owners holding through them.
We will make payments of principal of and premium, if any, and interest, if any, on debt securities represented by a registered global security registered in the name of a depositary or its nominee to the depositary or its nominee, as the case may be, as the registered owners of the registered global security. Neither we nor any trustee or any other agent of us or a trustee will be responsible or liable for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
We expect that the depositary for any debt securities represented by a registered global security, upon receipt of any payments of principal and premium, if any, and interest, if any, in respect of the registered
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global security, will immediately credit participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the registered global security as shown on the records of the depositary. We also expect that standing customer instructions and customary practices will govern payments by participants to owners of beneficial interests in the registered global security held through the participants, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name.” We also expect that any of these payments will be the responsibility of the participants.
No registered global security may be exchanged in whole or in part for debt securities registered, and no transfer of a registered global security in whole or in part may be registered, in the name of any person other than the depositary for such registered global security, unless (1) such depositary notifies us that it is unwilling or unable to continue as depositary for such registered global security or has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, or the Exchange Act, and we fail to appoint an eligible successor depositary within 90 days, (2) an event of default shall have occurred and be continuing with respect to such debt securities, or (3) circumstances, if any, exist in addition to or in lieu of the foregoing as have been specified for that purpose in an applicable prospectus supplement. In any such case, the affected registered global security may be exchanged in whole or in part for debt securities in definitive form and the applicable trustee will register any such debt securities in such name or names as such depositary directs.
We currently anticipate that certain registered global securities will be deposited with, or on behalf of, The Depository Trust Company, New York, New York, or DTC, and will be registered in the name of Cede & Co., as the nominee of DTC. DTC has advised us that DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that its participants, or direct participants, deposit with DTC. DTC also facilitates the post-trade settlement among direct participants of sales and other securities transactions in deposited securities, through electronic computerized book-entry transfers and pledges between direct participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a direct participant, either directly or indirectly. The rules applicable to DTC and its direct participants are on file with the SEC. The information in this paragraph concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility for the accuracy thereof. In the event registered global securities are deposited with, or on behalf of, a depositary other than DTC, we will describe additional or differing terms of the depositary arrangements in the applicable prospectus supplement relating to that particular series of debt securities.
We may also issue bearer debt securities of a series in the form of one or more global securities, referred to as “bearer global securities.” We currently anticipate that we will deposit these bearer global securities with a common depositary for Euroclear Bank SA/NV and Clearstream Banking, société anonyme, or with a nominee for the depositary identified in the prospectus supplement relating to that series. The prospectus supplement relating to a series of debt securities represented by a bearer global security will describe the specific terms and procedures, including the specific terms of the depositary arrangement and any specific procedures for the issuance of debt securities in definitive form in exchange for a bearer global security, with respect to the portion of the series represented by a bearer global security.
Neither we nor any trustee assumes any responsibility for the performance by DTC or any other depositary or its participants of their respective obligations, including obligations that they have under the rules and procedures that govern their operations.
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Governing Law
Our 2016 Indenture and any future indentures and our debt securities issued thereunder and any related guarantees are and will be governed by and construed in accordance with the laws of the State of New York.
DESCRIPTION OF SHARES OF BENEFICIAL INTEREST
References in this “Description of Shares of Beneficial Interest” section to “we,” “us” or “our” mean Service Properties Trust and not any of its consolidated subsidiaries, unless the context otherwise requires. The following description of the terms of our shares of beneficial interest is only a summary. For a complete description, please refer to our declaration of trust and bylaws, which have previously been filed with the SEC and are incorporated by reference into this prospectus, and this summary is qualified in its entirety thereby.
Our declaration of trust authorizes us to issue up to an aggregate of 300,000,000 shares of beneficial interest, of which 200,000,000 are currently designated as common shares of beneficial interest, $.01 par value per share, and 100,000,000 are currently designated as preferred shares of beneficial interest, without par value. As of August 19, 2021, we had 164,857,754 common shares issued and outstanding. As of August 19, 2021, 3,450,000 of our preferred shares were previously designated as 87∕8% Series B Cumulative Redeemable Preferred Shares, none of which are currently issued and outstanding, 13,800,000 of our preferred shares were previously designated as 7% Series C Cumulative Redeemable Preferred Shares, none of which are currently issued and outstanding, and 12,650,000 of our preferred shares were previously designated as 71∕8% Series D Cumulative Redeemable Preferred Shares, none of which are currently issued and outstanding.
Our declaration of trust contains a provision permitting our Board of Trustees, without any action by our shareholders, to amend our declaration of trust to increase or decrease the total number of shares of beneficial interest or the number of shares of any class or series that we have authority to issue. Our declaration of trust further authorizes our Board of Trustees to reclassify any unissued shares from time to time by setting the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications or terms or conditions of redemption of our shares of beneficial interest or any new class or series of shares created by our Board of Trustees. We believe that giving these powers to our Board of Trustees will provide us with increased flexibility in structuring possible future financings and acquisitions and in meeting other business needs which might arise. Although our Board of Trustees has no intention at the present time of doing so, it could authorize us to issue a class or series of shares of beneficial interest that could, depending upon the terms of the class or series, delay or prevent a change in control.
Common Shares
The following is a summary of some general terms and provisions of our common shares. Because it is a summary, it does not contain all of the information that may be important to you. If you want more information, you should read our declaration of trust and bylaws, copies of which have been filed with the SEC. See “Where You Can Find More Information.” This summary is also subject to and qualified by reference to the description of the particular terms of common shares described in the applicable prospectus supplement.
Except as otherwise described in the applicable prospectus supplement, and subject to the preferential rights of any other class or series of shares then outstanding or which may be issued, and to the ownership restrictions described below, holders of our common shares are entitled:
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to receive distributions on our common shares if, as and when authorized by our Board of Trustees and declared by us out of assets legally available for distribution (as determined by our Board of Trustees); and
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to share ratably in our assets legally available for distribution to our shareholders (as determined by our Board of Trustees) in the event of our liquidation, dissolution or winding up after payment of or adequate provision for all of our known debts and liabilities.
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Subject to the provisions of our declaration of trust regarding the restriction on the transfer of shares of beneficial interest, each outstanding common share entitles the holder to one vote on all matters submitted to a vote of shareholders, including the election of Trustees. Holders of our common shares do not have cumulative voting rights in the election of Trustees.
Holders of our common shares have no preference, conversion, exchange, sinking fund, redemption or appraisal rights, or preemptive rights to subscribe for any of our securities.
We will describe in the applicable prospectus supplement any material U.S. federal income tax considerations applicable to the common shares offered by such prospectus supplement.
For additional information about our common shares, including the potential effects that provisions in our declaration of trust and bylaws may have in delaying or preventing a change in our control, see “Description of Certain Provisions of Maryland Law and of Our Declaration of Trust and Bylaws” below.
Preferred Shares
The following is a summary of the general terms and provisions of the preferred shares that we may offer by this prospectus. We may issue preferred shares in one or more classes or series; each class or series of preferred shares will have its own rights and preferences. We will describe in a prospectus supplement (1) the specific terms of the class or series of any preferred shares offered through that prospectus supplement and (2) any general terms outlined in this section that will not apply to such preferred shares. Because this is a summary, it does not contain all of the information that may be important to you. If you want more information, you should read our declaration of trust, including any applicable articles supplementary, and bylaws, copies of which have been filed with the SEC. See “Where You Can Find More Information.” This summary is also subject to and qualified by reference to the description of the particular terms of our securities described in the applicable prospectus supplement. The prospectus supplement may add to, update or change the terms of such securities from those described below.
General. Our declaration of trust authorizes our Board of Trustees to determine the preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications and terms and conditions of redemption of any preferred shares.
The preferred shares will have the distribution, liquidation, redemption, voting and conversion rights described in this section unless we state otherwise in the applicable prospectus supplement. The liquidation preference is not indicative of the price at which the preferred shares will actually trade on or after the date of issuance. You should read the prospectus supplement relating to the particular class or series of the preferred shares for specific terms, including:
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the distinctive designation of the applicable class or series of preferred shares and the number of shares that will constitute the class or series;
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the initial offering price of such preferred shares;
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relative ranking and preference of such preferred shares as to distribution rights and rights upon liquidation, dissolution or winding up of our affairs;
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the distribution rate or rates (or method of calculation) on that class or series, the distribution periods, the date(s) on which distributions will be payable and whether the distributions will be cumulative, noncumulative or partially cumulative, and, if cumulative, the dates from which the distributions will start to cumulate;
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any redemption or sinking fund provisions of that class or series;
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any voting rights;
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any conversion or exchange provisions;
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any other specific terms, preferences, rights, limitations or restrictions of such preferred shares;
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any limitations on issuance of any class or series of preferred shares ranking senior to or on a parity with such preferred shares as to distribution rights and rights upon liquidation, dissolution or winding up of our affairs;
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•
any procedures for any auction and remarketing;
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any listing of such preferred shares on any securities exchange; and
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any limitations on record or beneficial ownership and restrictions on transfer, including those as may be appropriate to preserve our qualification for taxation as a REIT.
Holders of our preferred shares have no preemptive rights to subscribe for any of our securities.
We will describe in the applicable prospectus supplement any material U.S. federal income tax considerations applicable to the preferred shares offered by such prospectus supplement.
The issuance of preferred shares, the issuance of rights to purchase preferred shares or the possibility of the issuance of preferred shares or such rights could have the effect of delaying or preventing a change in our control. In addition, the rights of holders of common shares will be subject to, and may be adversely affected by, the rights of holders of any preferred shares that we have issued or may issue in the future.
For additional information about our preferred shares, including the potential effects that provisions in our declaration of trust and bylaws may have in delaying or preventing a change in our control, see “Description of Certain Provisions of Maryland Law and of Our Declaration of Trust and Bylaws” below.
As described under “Description of Depositary Shares,” we may, at our option, elect to offer depositary shares evidenced by depositary receipts. If we elect to do this, each depositary receipt will represent a fractional interest in a share of the particular class or series of the preferred shares issued and deposited with a depositary. The applicable prospectus supplement will specify that fractional interest.
Rank. Unless our Board of Trustees otherwise determines and we so specify in the applicable prospectus supplement, we expect that the preferred shares will, with respect to distribution rights and rights upon liquidation, dissolution or winding up of our affairs, rank senior to all our common shares.
Distributions. Holders of preferred shares of each class or series will be entitled to receive cash and/or share distributions at the rates and on the dates shown in the applicable prospectus supplement. We will pay each distribution to holders of record as they appear on our share transfer books on the record dates fixed by our Board of Trustees. In the case of preferred shares represented by depositary receipts, the records of the depositary referred to under “Description of Depositary Shares” will determine the persons to whom distributions are payable.
We will not authorize or pay any distributions on a class or series of preferred shares or set aside funds for the payment of distributions if restricted or prohibited by law, or if the terms of any of our agreements, including agreements relating to our indebtedness or our other classes or series of preferred shares, prohibit that authorization, payment or setting aside of funds or provide that the authorization, payment or setting aside of funds is a breach of or a default under that agreement. We are now, and may in the future become, a party to agreements which restrict or prevent the payment of distributions on, or the purchase or redemption of, our shares of beneficial interest, including preferred shares. These restrictions may be indirect, such as covenants which require us to maintain specified levels of net worth or assets.
Distributions on any class or series of preferred shares may be cumulative, noncumulative or partially cumulative, as specified in the applicable prospectus supplement. Cumulative distributions will be cumulative from and after the date shown in the applicable prospectus supplement. If our Board of Trustees fails to authorize a distribution that is noncumulative, the holders of the applicable class or series will have no right to receive, and we will have no obligation to pay, a distribution in respect of the applicable distribution period, whether or not distributions on that class or series are declared payable in the future.
We refer to our common shares or other shares, now or hereafter issued, that rank junior to an applicable class or series of preferred shares with respect to distribution rights as junior shares. To the extent that the applicable class or series is entitled to a cumulative distribution, we may not declare or pay any distributions, or set aside any funds for the payment of distributions, on junior shares, or redeem or otherwise acquire junior shares, unless we also have declared and either paid or set aside for payment the full cumulative distributions on such class or series of preferred shares and on all our other class or series of
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preferred shares ranking senior to or on a parity with such class or series of preferred shares for all past distribution periods. The preceding sentence does not prohibit:
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distributions payable in junior shares or options, warrants or rights to subscribe for or purchase junior shares;
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conversions into or exchanges for junior shares;
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pro rata offers to purchase or a concurrent redemption of all, or a pro rata portion of, the outstanding preferred shares of such class or series and any other class or series of shares ranking on a parity with such class or series of preferred shares with respect to distribution rights and rights upon our liquidation, dissolution or winding up; or
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our redemption, purchase or other acquisition of shares under incentive, benefit or share purchase plans for Trustees, officers or employees, or others performing or providing similar services, for the purposes of enforcing restrictions upon ownership and transfer of our equity securities contained in our declaration of trust or bylaws or our redemption or other acquisition of rights issued under any shareholder rights plan we may adopt.
To the extent an applicable class or series is noncumulative, we need only declare, and pay or set aside for payment, the distribution for the then current distribution period, before making distributions on or acquiring junior shares.
Unless full cumulative distributions on a class or series of preferred shares have been or are contemporaneously declared and either paid or set aside for payment for all past distribution periods, no distributions (other than in junior shares) may be declared or paid or set aside for payment on any other class or series of preferred shares ranking on a parity with such class or series with respect to distribution rights. When distributions are not paid in full upon a class or series of preferred shares and any other class or series ranking on a parity with such class or series with respect to distribution rights, all distributions declared upon such class or series and any class or series ranking on a parity with such class or series with respect to distribution rights shall be allocated pro rata so that the amount of distributions declared per share on such class or series and such other shares shall in all cases bear to each other the same ratio that the accrued distributions per share on such class or series and such other shares bear to each other.
Unless otherwise specified in the applicable prospectus supplement, we will credit any distribution payment made on an applicable class or series, including any capital gain distribution, first against the earliest accrued but unpaid distribution due with respect to the class or series.
Redemption. We may have the right or may be required to redeem one or more classes or series of preferred shares, as a whole or in part, in each case upon the terms, if any, and at the times and at the redemption prices shown in the applicable prospectus supplement.
If a class or series of preferred shares is subject to mandatory redemption, we will specify in the applicable prospectus supplement the number of shares we are required to redeem, when those redemptions start, the redemption price and any other terms and conditions affecting the redemption. The redemption price will include all accrued and unpaid distributions, except in the case of noncumulative preferred shares. The redemption price may be payable in cash or other property, as specified in the applicable prospectus supplement. If the redemption price for preferred shares of any class or series is payable only from the net proceeds of our issuance of shares of beneficial interest, the terms of the preferred shares may provide that, if no shares of beneficial interest shall have been issued or to the extent the net proceeds from any issuance are insufficient to pay in full the aggregate redemption price then due, the preferred shares will automatically and mandatorily be converted into shares of beneficial interest pursuant to conversion provisions specified in the applicable prospectus supplement.
Liquidation Preference. The applicable prospectus supplement will specify the liquidation preference of the applicable class or series. Upon our voluntary or involuntary liquidation, dissolution or winding up of our affairs, before any distribution may be made to the holders of our common shares or any other shares of beneficial interest ranking junior in the distribution of assets upon any liquidation, dissolution or winding up of our affairs, to the applicable class or series, the holders of that class or series will be entitled to receive, out of our assets legally available for distribution to shareholders, liquidating distributions in the
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amount of the liquidation preference, plus an amount equal to all distributions accrued and unpaid. In the case of a noncumulative applicable class or series, accrued and unpaid distributions include only the then current distribution period. Unless otherwise specified in the applicable prospectus supplement, if liquidating distributions have been made in full to all holders of preferred shares, our remaining assets will be distributed among the holders of any other shares of beneficial interest ranking junior to the preferred shares upon liquidation, according to their rights and preferences and in each case according to their number of shares.
If, upon any voluntary or involuntary liquidation, dissolution or winding up of our affairs, our available assets are insufficient to pay the amount of the liquidating distributions on all outstanding shares of that class or series and the corresponding amounts payable on all equally ranking shares of beneficial interest upon any liquidation, dissolution or winding up of our affairs, then the holders of that class or series and all other equally ranking shares of beneficial interest shall share ratably in the distribution in proportion to the full liquidating distributions to which they would otherwise be entitled.
Unless otherwise specified in the applicable prospectus supplement, after payment of the full amount of the liquidating distribution to which they are entitled, the holders of a class or series of preferred shares will have no right or claim to any of our remaining assets. Neither the sale, lease, transfer or conveyance of all or substantially all of our property or business, nor the merger or consolidation of us into or with any other entity or the merger or consolidation of any other entity into or with us or a statutory share exchange by us, shall be deemed to constitute the dissolution, liquidation or winding up of our affairs. In determining whether a distribution (other than upon voluntary or involuntary dissolution), by dividend, redemption or other acquisition of shares or otherwise, is permitted under Maryland law, amounts that would be needed, if we were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of the holders of a class or series of preferred shares will not be added to our total liabilities.
Voting Rights. Holders of our preferred shares will not have any voting rights, except as described below or as otherwise from time to time specified in the applicable prospectus supplement.
Unless otherwise specified in the applicable prospectus supplement, holders of our preferred shares (voting separately as a single class, together with all other classes or series of preferred shares with similar voting rights) will be entitled to elect two additional Trustees to our Board of Trustees at our next annual meeting of shareholders and at each subsequent annual meeting if at any time distributions on the applicable class or series are in arrears for six consecutive quarterly periods. If the applicable class or series has a cumulative distribution, the right to elect additional Trustees described in the preceding sentence shall remain in effect until we declare and pay or set aside for payment all distributions accrued and unpaid on the applicable class or series. If the applicable class or series does not have a cumulative distribution, the right to elect additional Trustees described above shall remain in effect until we declare and pay or set aside for payment distributions accrued and unpaid on four consecutive quarterly periods on the applicable class or series. In the event the preferred shareholders are so entitled to elect Trustees, the entire Board of Trustees will be increased by two Trustees.
Unless otherwise provided for in an applicable class or series, so long as any preferred shares are outstanding, we may not, without the affirmative vote or consent of a majority of the shares of each affected class or series of preferred shares outstanding at that time:
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authorize, create or increase the authorized or issued amount of any class or series of shares of beneficial interest ranking senior to that class or series of preferred shares with respect to distribution and liquidation rights;
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reclassify any authorized shares of beneficial interest into a class or series of shares of beneficial interest ranking senior to that class or series of preferred shares with respect to distribution and liquidation rights;
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create, authorize or issue any security or obligation convertible into or evidencing the right to purchase any shares of beneficial interest ranking senior to that class or series of preferred shares with respect to distribution and liquidation rights; and
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amend, alter or repeal the provisions of our declaration of trust or any articles supplementary relating to that class or series of preferred shares, whether by merger, consolidation or otherwise, in a manner that materially and adversely affects the class or series of preferred shares.
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The authorization, creation or increase of the authorized or issued amount of any class or series of shares of beneficial interest ranking on parity or junior to a class or series of preferred shares with respect to distribution and liquidation rights will not be deemed to materially and adversely affect that class or series. Further, with respect to any merger, consolidation or similar event, so long as a class or series of preferred shares remains outstanding with the terms thereof materially unchanged or the holders of shares of that class or series receive shares of the successor with substantially identical rights, taking into account that, upon the occurrence of such event, we may not be the surviving entity, the occurrence of such event will not be deemed to materially and adversely affect that class or series.
The foregoing voting provisions will not apply if all of the outstanding shares of the class or series of preferred shares with the right to vote have been redeemed or called for redemption and sufficient funds have been deposited in trust for the redemption either at or prior to the act triggering these voting rights.
As more fully described under “Description of Depositary Shares” below, if we elect to issue depositary shares, each representing a fraction of a share of a class or series, each depositary share will in effect be entitled to a fraction of a vote.
Conversion and Exchange Rights. We will describe in the applicable prospectus supplement the terms and conditions, if any, upon which you may, or we may require you to, convert or exchange preferred shares of any class or series into common shares or any other class or series of shares of beneficial interest or debt securities or other property. The terms will include the number of common shares or other securities or property into which the preferred shares are convertible or exchangeable, the conversion or exchange price (or the manner of determining it), the conversion or exchange period, provisions as to whether conversion or exchange will be at the option of the holders of the class or series or at our option, the events requiring an adjustment of the conversion or exchange price and provisions affecting conversion or exchange upon the redemption of shares of the class or series.
Transfer Agent and Registrar
The transfer agent and registrar for our common shares is Equiniti Trust Company. The transfer agent and registrar for each class or series of preferred shares that may be issued and sold pursuant to this prospectus will be designated in the applicable prospectus supplement.
DESCRIPTION OF DEPOSITARY SHARES
General
References in this “Description of Depositary Shares” section to “we,” “us” or “our” mean Service Properties Trust and not any of its consolidated subsidiaries, unless the context otherwise requires. The following is a summary of the general terms and provisions of the depositary shares that we may offer by this prospectus. Because it is a summary, it does not contain all of the information that may be important to you. If you want more information, you should read the form of deposit agreement and depositary receipts, which will be filed as exhibits to the registration statement of which this prospectus is a part prior to an offering of depositary shares. See “Where You Can Find More Information.” This summary is also subject to and qualified by reference to the descriptions of the particular terms of our securities described in the applicable prospectus supplement. We will describe in a prospectus supplement (1) the specific terms of the depositary shares offered through that prospectus supplement and (2) any general terms outlined in this section that will not apply to such depositary shares. The applicable prospectus supplement also may add to, update or change the terms of such securities from those described below.
We may, at our option, elect to offer fractional interests in preferred shares, rather than whole preferred shares. If we exercise this option, we will appoint a depositary to issue depositary receipts representing those fractional interests. Preferred shares of each class or series represented by depositary shares will be deposited under a separate deposit agreement between us and the depositary. The prospectus supplement relating to a series of depositary shares will show the name and address of the depositary. Subject to the terms of the applicable deposit agreement, each owner of depositary shares will be entitled to all of the distribution, voting, conversion, redemption, liquidation and other rights and preferences of the preferred shares represented by those depositary shares.
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Depositary receipts issued pursuant to the applicable deposit agreement will evidence ownership of depositary shares. Upon surrender of depositary receipts at the office of the depositary, and upon payment of the charges provided in and subject to the terms of the deposit agreement, a holder of depositary shares will be entitled to receive the preferred shares underlying the surrendered depositary receipts.
We will describe in the applicable prospectus supplement any material U.S. federal income tax considerations applicable to the depositary shares offered by such prospectus supplement.
Distributions
The depositary will be required to distribute all cash distributions received in respect of the applicable preferred shares to the record holders of depositary receipts evidencing the related depositary shares, in proportion to the number of depositary receipts owned by such holders on the relevant record date, which will be the same date as the record date fixed by us for the distribution paid on the applicable preferred shares.
If the distribution is other than in cash, a depositary will be required to distribute property received by it to the record holders of depositary receipts entitled thereto, unless the depositary determines that it is not feasible to make the distribution. In that case, the depositary may, with our approval, sell the property and distribute the net proceeds from the sale to the holders.
Depositary shares that represent preferred shares converted or exchanged will not be entitled to distributions. The deposit agreement will also contain provisions relating to the manner in which any subscription or similar rights we offer to holders of the preferred shares will be made available to holders of depositary shares. All distributions will be subject to obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the depositary.
Withdrawal of Preferred Shares
You may receive the number of whole preferred shares and any money or other property represented by your depositary receipts after surrendering the depositary receipts at the corporate trust office of the depositary. Partial preferred shares will not be issued. If the depositary shares that you surrender exceed the number of depositary shares that represent the number of whole preferred shares you wish to withdraw, then the depositary will deliver to you at the same time a new depositary receipt evidencing the excess number of depositary shares. Once you have withdrawn your preferred shares, you will not be entitled to re-deposit those preferred shares under the deposit agreement in order to receive depositary shares. We do not expect that there will be any public trading market for withdrawn preferred shares.
Redemption of Depositary Shares
If we redeem a class or series of the preferred shares underlying the depositary shares, the depositary will redeem those depositary shares from the proceeds received by it. The depositary will mail notice of redemption not less than 30 and not more than 60 days before the date fixed for redemption to the record holders of the depositary receipts evidencing the depositary shares being redeemed at their addresses appearing in the depositary’s books. The redemption price per depositary share will be equal to the applicable fraction of the redemption price per share payable with respect to the class or series of the preferred shares. The redemption date for depositary shares will be the same as that of the preferred shares. If we are redeeming less than all of the depositary shares, the depositary will select the depositary shares we are redeeming by lot or pro rata as the depositary may determine.
After the date fixed for redemption, the depositary shares called for redemption will no longer be deemed outstanding. All rights of the holders of the depositary shares and the related depositary receipts will cease at that time, except the right to receive the money or other property to which the holders of depositary shares were entitled upon redemption. Receipt of the money or other property is subject to surrender to the depositary of the depositary receipts evidencing the redeemed depositary shares.
Voting of the Preferred Shares
Upon receipt of notice of any meeting at which the holders of the applicable preferred shares are entitled to vote, a depositary will be required to mail the information contained in the notice of meeting to
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the record holders of the applicable depositary receipts. Each record holder of depositary receipts on the record date, which will be the same date as the record date for voting preferred shares, will be entitled to instruct the depositary as to the exercise of the voting rights pertaining to the amount of preferred shares represented by the holder’s depositary shares. If you do not instruct the depositary how to vote your shares, the depositary will abstain from voting those shares. The depositary will not be responsible for any failure to carry out an instruction to vote or for the effect of any such vote made so long as the action or inaction of the depositary is in good faith and is not the result of the depositary’s gross negligence or willful misconduct.
Liquidation Preference
Upon our liquidation, whether voluntary or involuntary, each holder of depositary shares will be entitled to the fraction of the liquidation preference accorded each preferred share represented by the depositary shares, as described in the applicable prospectus supplement.
Conversion or Exchange of Preferred Shares
The depositary shares will not themselves be convertible into or exchangeable for common shares, preferred shares or any of our other securities or property. Nevertheless, if so specified in the applicable prospectus supplement, the depositary receipts may be surrendered by holders to the applicable depositary with written instructions to it to instruct us to cause conversion or exchange of the preferred shares represented by the depositary shares. Similarly, if so specified in the applicable prospectus supplement, we may require you to surrender all of your depositary receipts to the applicable depositary upon our requiring the conversion or exchange of the preferred shares represented by the depositary shares. We will agree that, upon receipt of the instruction and any amounts payable in connection with the conversion or exchange, we will cause the conversion or exchange using the same procedures as those provided for delivery of preferred shares to effect the conversion or exchange. If you are converting or exchanging only a part of the depositary shares, the depositary will issue you a new depositary receipt for any unconverted or unexchanged depositary shares.
Amendment and Termination of a Deposit Agreement
We and the applicable depositary are permitted to amend the provisions of the depositary receipts and the deposit agreement. However, the holders of a majority of the applicable depositary shares then outstanding must approve any amendment that adds or increases fees or charges or prejudices an important right of holders. Every holder of an outstanding depositary receipt at the time any amendment becomes effective, by continuing to hold the receipt, will be bound by the applicable deposit agreement, as amended.
Any deposit agreement may be terminated by us upon not less than 30 days’ prior written notice to the applicable depositary if (1) the termination is necessary to preserve our qualification for taxation as a REIT or (2) a majority of each class or series of preferred shares affected by the termination consents to the termination. When either event occurs, the depositary will be required to deliver or make available to each holder of depositary receipts, upon surrender of the depositary receipts held by the holder, the number of whole or fractional preferred shares as are represented by the depositary shares evidenced by the depositary receipts, together with any other property held by the depositary with respect to the depositary receipts. In addition, a deposit agreement will automatically terminate if:
•
all depositary shares have been redeemed;
•
there shall have been a final distribution in respect of the related preferred shares in connection with our liquidation and the distribution has been made to the holders of depositary receipts evidencing the depositary shares representing the preferred shares; or
•
each related preferred share shall have been converted or exchanged into securities not represented by depositary shares.
Charges of a Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of a deposit agreement. In addition, we will pay the fees and expenses of a depositary in connection with the initial
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deposit of the preferred shares and any redemption of preferred shares. However, holders of depositary receipts will pay any transfer or other governmental charges and the fees and expenses of a depositary for any duties the holders request to be performed that are outside of those expressly provided for in the applicable deposit agreement.
Resignation and Removal of Depositary
A depositary may resign at any time by delivering to us notice of its election to do so. In addition, we may at any time remove a depositary. Any resignation or removal will take effect when we appoint a successor depositary and it accepts the appointment. We must appoint a successor depositary within 60 days after delivery of the notice of resignation or removal. A depositary must be a bank or trust company having its principal office in the United States that has a combined capital and surplus of at least $50 million.
Miscellaneous
The depositary will be required to forward to holders of depositary receipts any reports and communications from us that it receives with respect to the related preferred shares. Holders of depository receipts will be able to inspect the transfer books of the depository and the list of holders of depositary receipts upon reasonable notice.
Neither we nor the depositary will be liable if the depositary is prevented from or delayed in performing its obligations under a deposit agreement by law or any circumstances beyond its control. Our obligations and those of the depositary under a deposit agreement will be limited to performing duties in good faith and without gross negligence or willful misconduct. Neither we nor the depositary will be obligated to prosecute or defend any legal proceeding in respect of any depositary receipts, depositary shares or related preferred shares unless satisfactory indemnity is furnished. We and the depositary will be permitted to rely on written advice of counsel or accountants, on information provided by persons presenting preferred shares for deposit, by holders of depositary receipts, or by other persons believed in good faith to be competent to give the information, and on documents believed in good faith to be genuine and signed by a proper party.
If the depositary receives conflicting claims, requests or instructions from any holders of depositary receipts, on the one hand, and us, on the other hand, the depositary shall be entitled to act on the claims, requests or instructions received from us.
DESCRIPTION OF WARRANTS
References in this “Description of Warrants” section to “we,” “us” or “our” mean Service Properties Trust and not any of its consolidated subsidiaries, unless the context otherwise requires. The following is a summary of the general terms and provisions of the warrants that we may offer by this prospectus. Because it is a summary, it does not contain all of the information that may be important to you. If you want more information, you should read the forms of warrants and the warrant agreement which will be filed as exhibits to the registration statement of which this prospectus is a part. See “Where You Can Find More Information.” This summary is also subject to and qualified by reference to the descriptions of the particular terms of our securities described in the applicable prospectus supplement. We will describe in a prospectus supplement (1) the specific terms of the warrants offered through that prospectus supplement and (2) any general terms outlined in this section that will not apply to such warrants. The applicable prospectus supplement also may add to, update or change the terms of such securities from those described below.
We may issue, together with any other securities being offered or separately, warrants entitling the holder to purchase from or sell to us, or to receive from us the cash value of the right to purchase or sell, debt securities, preferred shares, depositary shares or common shares. We and a warrant agent will enter a warrant agreement pursuant to which the warrants will be issued. The warrant agent will act solely as our agent in connection with the warrants and will not assume any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. We will file a copy of the forms of warrants and the warrant agreement with the SEC at or before the time of the offering of the applicable series of warrants.
In the case of each series of warrants, the applicable prospectus supplement will describe the terms of the warrants being offered thereby. These include the following, if applicable:
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•
the offering price;
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the currencies in which such warrants are being offered;
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the number of warrants offered;
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the securities underlying the warrants;
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the exercise price, the procedures for exercise of the warrants and the circumstances, if any, that will cause the warrants to be automatically exercised;
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the date on which the warrants will expire;
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the rights, if any, we have to redeem the warrants;
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the name of the warrant agent; and
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the other terms of the warrants.
We will describe in the applicable prospectus supplement any material U.S. federal income tax considerations applicable to the warrants offered by such prospectus supplement.
Warrants may be exercised at the appropriate office of the warrant agent or any other office indicated in the applicable prospectus supplement. Before the exercise of warrants, holders will not have any of the rights of holders of the securities purchasable upon exercise and will not be entitled to payments made to holders of those securities.
The warrant agreement may be amended or supplemented without the consent of the holders of the warrants to which the amendment or supplement applies to effect changes that are not inconsistent with the provisions of the warrants and that do not adversely affect the interests of the holders of the warrants. However, any amendment that materially and adversely alters the rights of the holders of warrants will not be effective unless the holders of a majority of the applicable warrants then outstanding approve the amendment. Every holder of an outstanding warrant at the time any amendment becomes effective, by continuing to hold the warrant, will be bound by the applicable warrant agreement as amended thereby. The prospectus supplement applicable to a particular series of warrants may provide that certain provisions of the warrants, including the securities for which they may be exercisable, the exercise price and the expiration date may not be altered without the consent of the holder of each warrant.
DESCRIPTION OF CERTAIN PROVISIONS OF MARYLAND LAW
AND OF OUR DECLARATION OF TRUST AND BYLAWS
AND OF OUR DECLARATION OF TRUST AND BYLAWS
We are organized as a Maryland REIT. The following is a summary of our declaration of trust and bylaws and material provisions of Maryland law applicable to Maryland REITs, or the Maryland REIT Law. Because it is a summary, it does not contain all the information that may be important to you. If you want more information, you should read our declaration of trust and bylaws, copies of which are filed with the SEC, or refer to the provisions of the Maryland REIT Law.
Restrictions on Transfer and Ownership of Shares
Our declaration of trust provides that our Board of Trustees has the power to refuse to permit a transfer of shares if it determines such transfer would jeopardize our qualification for taxation as a REIT under the Code. In connection with the foregoing, if our Board of Trustees shall, at any time, be of the opinion that (1) direct or indirect ownership (as defined in our declaration of trust) of shares representing more than 9.8% of the number, value or voting power of the total of our outstanding shares has or may become concentrated in the hands of one beneficial owner, other than specified excepted persons, (2) our shares would be owned by fewer than 100 persons, or (3) we would be “closely held” under Section 856(h) of the Code, our Board of Trustees shall have the power and right to (a) refuse to transfer or issue such excess shares to any person whose acquisition of such shares would, in the opinion of our Board of Trustees, result in the direct or indirect beneficial ownership of such excess shares by a person other than an excepted person and (b) to treat such excess shares as having been transferred to a trustee, as described more fully below, and the purported transfer to the proposed transferee shall be void ab initio, and such intended transferee deemed never to have had an interest in the shares.
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Our bylaws provide that no person may own, or be deemed to own by virtue of the attribution provisions of the Code, more than 9.8% in value or in number, whichever is more restrictive, of any class or series of our outstanding shares, or 9.8% in value or in number, whichever is more restrictive, of our outstanding common shares. Our bylaws also prohibit any person from beneficially or constructively owning our shares if that ownership would result in us being “closely held” under Section 856(h) of the Code or otherwise cause us to fail to qualify for taxation as a REIT. Any transfer of shares which results in our shares being owned by fewer than 100 persons will be void ab initio and the proposed transferee shall acquire no rights in such shares.
Our Board of Trustees, in its sole discretion, may exempt a person from the share ownership limitation if it determines, in its discretion, that: (1) the ownership of shares by such person would not result in our being “closely held” under Section 856(h) of the Code or otherwise failing to qualify for taxation as a REIT; (2) such person does not and will not own, actually or constructively, an interest in one of our tenants (or a tenant of any entity owned or controlled by us) that would cause us to own, actually or constructively, more than a 9.8% interest in the tenant; (3) the ownership of shares in excess of the ownership limit pursuant to the exception requested would not cause a default under the terms of any contract to which we or any of our subsidiaries are party or reasonably expect to become a party; and (4) the ownership of shares in excess of the ownership limit is in our best interest. In connection with any requested exemption, our Board of Trustees may require such rulings from the IRS or opinions of counsel as it deems necessary or advisable in order to determine or ensure our qualification for taxation as a REIT and such representations, undertakings and agreements it determines to be necessary in order for it to make the foregoing determinations.
In determining whether to grant an exemption, our Board of Trustees may consider, among other factors, the following:
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the general reputation and moral character of the person requesting an exemption;
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whether the person’s ownership of shares would be direct or through ownership attribution;
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whether the person’s ownership of shares would interfere with the conduct of our business, including, without limitation, our ability to acquire additional properties or additional investments in issuers currently invested in by us or other issuers;
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whether granting an exemption would adversely affect any of our existing contractual arrangements;
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whether the person requesting an exemption has been approved as an owner by all regulatory or other governmental authorities that have jurisdiction over us; and
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whether the person requesting an exemption is attempting a change in control or to affect our policies in a way in which the Board of Trustees, in its discretion, considers adverse to our or our shareholders’ best interests.
If a person attempts a transfer of our shares in violation of the ownership limitations described above, then the Board of Trustees is authorized and empowered to deem that number of shares which would cause the violation (a) to be automatically transferred to a charitable trust for the exclusive benefit of one or more charitable beneficiaries designated by us or (b) to the fullest extent provided by law, to be void ab initio. A transfer to the charitable trust will be deemed to be effective on the business day prior to the date of the purported transfer, or at such other time determined by our Board of Trustees. The prohibited owner will not acquire any rights in these excess shares (except to the extent provided below upon sale of the shares), will not benefit economically from ownership of any excess shares, will have no rights to distributions, will not possess any rights to vote and, to the extent permitted by law, will have no claim, cause of action or other recourse against the purported transferor of such shares. Subject to Maryland law, the trustee of the charitable trust will have the authority to rescind as void any vote cast by the prohibited owner prior to our discovery that the shares have been transferred to the trust and to recast the vote in accordance with the desires of the trustee acting for the benefit of the charitable beneficiary. However, if we have already taken irreversible action, then the trustee will not have the authority to rescind and recast the vote. Any dividend or other distribution paid prior to our discovery that shares have been transferred to the trust for the charitable beneficiary will be paid by the recipient to the trustee. Any dividend or other distribution authorized but unpaid will be paid when due to the trustee. Any dividend or distribution paid to the trustee will be held in trust for the charitable beneficiary.
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Unless otherwise directed by the Board of Trustees, within 20 days after receiving notice from us that our shares have been transferred to a charitable trust, or as soon thereafter as is practicable, the trustee will sell the shares and related rights held in the charitable trust to a person designated by the trustee whose ownership of the shares will not violate the ownership limitations set forth in our bylaws. Upon this sale, the interest of the charitable beneficiary in the shares sold will terminate and the trustee will distribute the net proceeds of the sale to the prohibited owner and to the charitable beneficiary as follows:
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the prohibited owner will receive the lesser of:
(1)
the price paid by the prohibited owner for the shares or, if the prohibited owner did not give value for the shares in connection with the event causing the shares to be held in the charitable trust, for example, in the case of a gift, devise or other similar transaction, the market price (as defined in our bylaws) of the shares on the day of the event causing the shares to be transferred to the charitable trust, less our and the charitable trustee’s costs, expenses and compensation described below; and
(2)
the price received by the trustee from the sale of the shares held in the charitable trust; and
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any proceeds in excess of the amount payable to the prohibited owner shall be paid to the charitable beneficiary, less the costs, expenses and compensation of the charitable trust and trustee.
If such shares are sold by a prohibited owner, then:
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those shares will be deemed to have been sold on behalf of the charitable trust; and
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to the extent that the prohibited owner received an amount for those shares that exceeds the amount that the prohibited owner was entitled to receive from a sale by the trustee, the prohibited owner must pay the excess to the trustee upon demand.
Also, shares held in the charitable trust will be deemed to be offered for sale to us, or our designee, at a price per share equal to the lesser of:
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the price that was paid for the shares by the proposed transferee; and
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the market price of the shares on the date we or our designee accepts the trustee’s offer to sell.
In either of the above cases, the price per share will be less our and the charitable trustee’s costs, expenses and compensation described below.
We will have the right to accept the offer for a period of 90 days following the receipt by us of notice of the event that has caused the shares to be transferred. The net proceeds of the sale to us will be distributed to the prohibited owner pursuant to our declaration of trust.
Any person who acquires or attempts or intends to acquire beneficial or constructive ownership of any shares that will or may violate the foregoing share ownership limitations, or any person who would have owned shares that resulted in a transfer to a charitable trust, is required to immediately give written notice to us of such event, or in the case of such a proposed or attempted transaction, give at least 15 days’ prior written notice, and to provide to us such other information as we may request.
Every owner of 5% or more of any class or series of our shares is required to give written notice to us within 30 days after the end of each taxable year, and also within three business days after we so request, stating the name and address of the owner, the number of shares of each class and series of our shares which the owner beneficially owns and a description of the manner in which those shares are held. Any such owner who holds our shares as nominee for another person who is required to include distributions on our shares in his or her gross income (the actual owner) is required to give written notice to us stating the name and address of the actual owner and the number of each class and series of our shares of the actual owner with respect to whom the holder of our shares is nominee. Each such shareholder and each such actual owner is required to provide us with any additional information that we may request in order to determine our qualification for taxation as a REIT, to determine our compliance with other applicable laws or requirements of any governmental authority or to ensure compliance with the foregoing share ownership limitations. In addition, each beneficial and constructive shareholder (and each person holding our shares on behalf of such shareholder) is required to provide us with such information as we may request, in good faith, in order to
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determine our qualification for taxation as a REIT, to determine our compliance with other applicable laws or requirements of any governmental authority and compliance with such share ownership limitations.
Our bylaws provide that the trustee of the charitable trust is entitled to reasonable compensation, as approved by our Board of Trustees, and is entitled to be indemnified for its costs and expenses reasonably incurred in connection with conducting its duties and satisfying its obligations under our bylaws. Any such compensation, costs and expenses may be funded from the charitable trust or by us and, if funded by us, we are entitled to reimbursement on a first priority basis from the charitable trust.
We are also entitled, without limiting a shareholder’s other obligations under our declaration of trust and bylaws, to collect from the charitable trust our costs and expenses incurred in the process of enforcing the ownership limitations contained in our bylaws.
The restrictions in our declaration of trust and bylaws described above will not preclude the settlement of any transaction entered into through the facilities of any national securities exchange or automated interdealer quotation system. Our bylaws provide, however, that the fact that the settlement of any transaction occurs will not negate the effect of any of the foregoing limitations and any transferee in this kind of transaction will be subject to all of the provisions and limitations described above.
All certificates evidencing our shares and any share statements for our uncertificated shares may bear legends referring to the foregoing restrictions.
The restrictions on transfer in our declaration of trust and bylaws are intended to assist with our compliance with the requirements for qualification for taxation as a REIT under the Code and otherwise to promote our orderly governance. These restrictions do not apply to RMR LLC or its affiliates.
Trustees
Our declaration of trust and bylaws provide for a Board of Trustees of five members and that our Board of Trustees may change the number of Trustees. As of the date of this prospectus, our Board of Trustees consists of seven Trustees.
Our declaration of trust previously divided our Board of Trustees into three classes, with shareholders electing Trustees of each class for three year terms and only one class of Trustees being elected each year. Pursuant to an amendment to our declaration of trust approved at our 2020 annual meeting of shareholders, beginning with our 2021 annual meeting, the Trustees whose terms expire at an annual meeting will stand for election at the meeting for one-year terms and all Trustees will stand for election at our 2023 annual meeting of shareholders and, thereafter, for one-year terms.
There is no cumulative voting in the election of Trustees. Except as may be mandated by any applicable law or the listing requirements of the principal exchange on which our common shares are listed, and subject to the voting rights of any class or series of our shares of beneficial interest which may be hereafter created, the election of a Trustee in an uncontested election, which is an election in which the number of nominees for election equals (or is less than) the number to be elected at the meeting, shall be by the affirmative vote of holders of shares of beneficial interest representing a majority of the total number of votes cast and the election of a Trustee in a contested election shall be by a plurality of the votes cast by holders of shares of beneficial interest then outstanding and entitled to vote thereon.
In case of failure to elect Trustees at an annual meeting of shareholders, the incumbent Trustees will hold over and continue to direct the management of our business and affairs until they resign or their successors are elected and qualify. Any vacancy on our Board of Trustees may be filled only by a majority of the remaining Trustees, even if the remaining Trustees do not constitute a quorum, for the remaining term of the class in which the vacancy exists and until a successor is elected and qualifies.
Our declaration of trust and bylaws provide that a Trustee may be removed only for cause by the affirmative vote either of all the remaining Trustees or of the holders of not less than two-thirds of our common shares then outstanding and entitled to vote generally in the election of Trustees. These provisions preclude shareholders from removing our incumbent Trustees unless they can obtain the requisite affirmative vote of shares. Any shareholders proposing to remove one or more Trustees must meet all of the
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requirements in our bylaws for a nomination of a Trustee at an annual meeting of shareholders or a proposal of other business at a meeting of shareholders, as described below under “— Advance Notice of Trustee Nominations and New Business.”
Under our bylaws, a Trustee must be at least 21 years of age, not under legal disability, have substantial expertise or experience relevant to our business (as determined by our Board of Trustees), not have been convicted of a felony and meet the qualifications of an Independent Trustee or a Managing Trustee. An “Independent Trustee” is one who is not an employee of our Advisor (as defined in our declaration of trust), who is not involved in our day to day activities, who meets the qualifications of an independent trustee under our declaration of trust and who meets the qualifications of an independent director under the applicable rules of the principal securities exchange on which our common shares are listed for trading and the SEC, as those requirements may be amended from time to time. A “Managing Trustee” is one who has been an employee, officer or director of our Advisor or involved in our day to day activities for at least one year prior to his or her election. A majority of the Trustees holding office shall at all times be Independent Trustees, except for temporary periods due to vacancies. If the number of Trustees, at any time, is set at less than five, at least one Trustee will be a Managing Trustee. So long as the number of Trustees shall be five or greater, at least two Trustees will be Managing Trustees.
Advance Notice of Trustee Nominations and New Business; Procedures of Special Meetings of Shareholders
Annual Meetings of Shareholders. Our bylaws provide that nominations of individuals for election to our Board of Trustees and proposals of other business to be considered at an annual meeting of shareholders may be made (1) in our notice of the meeting by or at the direction of our Board of Trustees or otherwise properly brought before the meeting by or at the direction of our Board of Trustees, or (2) by a shareholder who is entitled to vote at the meeting, is entitled to make nominations or proposals and has complied with the advance notice procedures or the proxy access procedures set forth in our bylaws.
Under our bylaws, a shareholder’s written notice of nominations of individuals (outside of the proxy access procedures as described below) for election to our Board of Trustees or proposal of other business to be considered at an annual meeting of shareholders must be delivered to our Secretary at our principal executive offices not later than 5:00 p.m. (Eastern Time) on the 120th day nor earlier than the 150th day prior to the first anniversary of the date of the proxy statement for the preceding year’s annual meeting; provided, however, that if the annual meeting is called for a date that is more than 30 days earlier or later than the first anniversary of the date of the preceding year’s annual meeting, the notice must be delivered by not later than 5:00 p.m. (Eastern Time) on the 10th day following the earlier of the day on which (1) notice of the date of the annual meeting is mailed or otherwise made available or (2) public announcement of the date of the annual meeting is first made by us. Neither the postponement or adjournment of an annual meeting, nor the public announcement of such postponement or adjournment, commences a new time period (or extends any time period) for the giving of a shareholder’s notice.
Our bylaws set forth procedures for submission of nominations of individuals (outside of the proxy access procedures as described below) for election to our Board of Trustees and other proposals by our shareholders for consideration at an annual meeting of shareholders, including, among other things:
•
requiring that any one or more shareholders wishing to make a nomination or proposal of other business have continuously owned our shares of beneficial interest entitled to vote in the election of Trustees or propose other business for at least three years as of the date of the giving of the notice of the proposed nomination or proposal of other business, the record date for determining the shareholders entitled to vote at the meeting and the time of the annual meeting, with the aggregate shares owned by such shareholder(s) as of each such date during such three year period representing at least 1% of our shares of beneficial interest, that the shareholder(s) hold a certificate evidencing the aggregate number of shares of beneficial interest owned at the time of submitting a notice as of each such date, and that the shareholder(s) submit the proposal to our Secretary in accordance with the requirements of our bylaws;
•
providing that the advance notice provisions in our bylaws are the exclusive means for shareholders to make nominations or propose business for consideration at an annual meeting of our shareholders, except as provided under the proxy access provisions of our bylaws, or our proxy access provisions,
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or to the extent of matters which are required to be presented to our shareholders by applicable law, which have been properly presented in accordance with the requirements of such law;
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requiring certain information and documentation be provided regarding any proposed nominee for election to our Board of Trustees by the proposing shareholder(s);
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requiring certain information be provided with respect to any business other than the election of Trustees that the shareholder(s) propose(s) to bring before a meeting of our shareholders;
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requiring certain information and documentation be provided as to the proposing shareholder(s) and certain of its (their) affiliates; and
•
providing that the proposing shareholder(s) is (are) responsible for ensuring compliance with the advance notice provisions and that neither we, our Board of Trustees, any committee of our Board of Trustees nor any of our officers has any duty to request clarification or updating information or to inform the proposing shareholder(s) of any defect in the notice of the proposing shareholder(s).
Special Meetings of Shareholders. With respect to special meetings of shareholders, our bylaws provide that only business brought before the meeting pursuant to our notice of the meeting by or at the direction of our Board of Trustees or otherwise properly brought before the meeting by or at the direction of our Board of Trustees may be considered at such meeting. Nominations of individuals for election to our Board of Trustees may be made at a special meeting of shareholders at which Trustees are to be elected pursuant to our notice of meeting, by or at the direction of our Board of Trustees or, provided that our Board of Trustees has determined that Trustees will be elected at such special meeting, by a shareholder who is a shareholder of record both at the time of giving of the notice provided for in our bylaws through and including the time of the special meeting, who is entitled to vote at the meeting and has complied with the advance notice procedures set forth in our bylaws. Under our bylaws, if we call a special meeting of shareholders for the purpose of electing one or more Trustees, any one or more shareholders may nominate an individual or individuals (as the case may be) for election to our Board of Trustees if the shareholder(s) satisfies the ownership, holding and certificate requirements required by our bylaws, as described above, for submitting nominations for consideration at an annual meeting of shareholders. To be timely, a shareholder’s notice must be delivered not earlier than the 150th day prior to such special meeting and not later than 5:00 p.m. (Eastern Time) on the later of (1) the 120th day prior to such special meeting or (2) the 10th day following the day on which public announcement is first made of the date of the special meeting. Neither the postponement or adjournment of a special meeting, nor the public announcement of such postponement or adjournment, shall commence a new time period for the giving of a shareholder’s notice.
Proxy Access Nominations
Our bylaws contain proxy access provisions which permit any shareholder or group of up to 20 shareholders owning at least 3% of our outstanding shares of beneficial interest continuously for at least three years to nominate and include up to a specified number of Trustee nominees in our proxy materials for an annual meeting of shareholders. The maximum number of shareholder nominees permitted under these proxy access provisions shall not exceed the greater of two or 20% of the total number of Trustees in office as of the last day on which a shareholder nomination may be delivered; provided, however, that if we have a classified Board of Trustees and the size of our Board of Trustees is less than nine Trustees, the permitted number of shareholder nominees shall be reduced so that it does not exceed one-half of the number of Trustees to be elected at the meeting rounded down to the nearest whole number (but not lowered as a result of this proviso to less than one).
Under our proxy access provisions, a shareholder’s written notice of nominations of individuals for election to our Board of Trustees to be included in our proxy statement for an annual meeting must be delivered to our Secretary at our principal executive offices not less than 120 days nor earlier than 150 days prior to the anniversary of the date of the proxy statement for the immediately preceding annual meeting of shareholders. Neither the postponement or adjournment of an annual meeting, nor the public disclosure of such postponement or adjournment, commences a new time period (or extends any time period) for the giving of a shareholder’s written notice.
The proxy access provisions in our bylaws set forth procedures for submission of nominations of individuals for election to our Board of Trustees to be included in our proxy statement for an annual meeting, including, among other things:
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•
requiring that any shareholder or group of up to 20 shareholders wishing to make a nomination (i) have continuously owned a number of our shares of beneficial interest that represents at least 3% of our outstanding shares of beneficial interest for at least three years, (ii) continue to own the requisite shares through the date of the annual meeting and (iii) meet all other requirements of our proxy access provisions;
•
requiring certain information and documentation be provided regarding any proposed nominee for election to our Board of Trustees by the nominating shareholder(s);
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requiring certain information, documentation, representations and undertakings be provided as to and/or by the nominating shareholder(s), including that the nominating shareholder(s) did not acquire and is (are) not holding any of our shares or other securities for the purpose or with the intent to change or influence control of us;
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providing that the nominating shareholder(s) is (are) responsible for ensuring compliance with our proxy access provisions; and
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providing that our proxy access provisions provide the exclusive method for a shareholder to include nominees for election to our Board of Trustees in our proxy materials.
Any shareholder nominee who is included in our proxy materials for a particular meeting but either (i) subsequently withdraws from or becomes ineligible or unavailable for election at such meeting or (ii) does not receive at least 20% of the votes cast in favor of such shareholder nominee’s election, will be ineligible for nomination under the proxy access provisions in our bylaws for the next two annual meetings. Such ineligibility under such proxy access provisions will not prevent any shareholder from otherwise nominating any person to our Board of Trustees pursuant to and in accordance with the advance notice provisions of our bylaws.
Meetings of Shareholders; Voting by Shareholders
Under our declaration of trust, our annual meetings of shareholders will be held within six months after the end of the fiscal year. Meetings of our shareholders, including the annual meeting and any special meetings, may be called only by our Board of Trustees, provided that, if there are no Trustees, our officers shall call a special meeting of the shareholders for the purpose of electing Trustees.
Whenever shareholders are required or permitted to take any action by a vote, the action may only be taken by a vote at a shareholders meeting. Under our declaration of trust and bylaws, shareholders do not have the right to take any action by written consent. With respect to matters brought before a meeting of shareholders other than the election of Trustees, except where a different voting standard is required by any applicable law, the listing requirements of the principal securities exchange on which our common shares are listed or a specific provision of our declaration of trust, our bylaws provide that the vote required for approval shall be the affirmative vote of a majority of the total number of votes cast.
Liability and Indemnification of Trustees and Officers
The Maryland REIT Law permits a Maryland REIT to include in its declaration of trust a provision limiting the liability of its trustees and officers to the REIT and its shareholders for money damages except for liability resulting from (1) actual receipt of an improper benefit or profit in money, property or services or (2) active and deliberate dishonesty by the trustee or officer that was established by a final judgment as being material to the cause of action adjudicated. Our declaration of trust contains a provision which eliminates the liability of our Trustees and officers to the maximum extent permitted by Maryland law.
The Maryland REIT Law also permits a Maryland REIT to indemnify and advance expenses to its trustees, officers, employees and agents to the same extent permitted by the Maryland General Corporation Law, or the MGCL, for directors and officers of Maryland corporations. The MGCL permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made, or are threatened to be made, a party by reason of their service in those capacities. However, a Maryland corporation is not permitted to provide this type of indemnification if the following is established:
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the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed in bad faith or (2) was the result of active and deliberate dishonesty;
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the director or officer actually received an improper personal benefit in money, property or services; or
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in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.
Under Maryland law, a Maryland corporation may not indemnify a director or officer in a suit by the corporation or in its right in which the director or officer was adjudged liable to the corporation or in a suit in which the director or officer was adjudged liable on the basis that a personal benefit was improperly received. A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct or was adjudged liable on the basis that personal benefit was improperly received. However, indemnification for an adverse judgment in a suit by the corporation or in its right, or for a judgment of liability on the basis that a personal benefit was improperly received, is limited to expenses. The MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of the following:
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a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and
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a written undertaking by him or her, or on his or her behalf, to repay the amount paid or reimbursed by the corporation if it is ultimately determined that this standard of conduct was not met.
Our declaration of trust requires us, to the maximum extent permitted by Maryland law, in effect from time to time, to indemnify (1) our Trustees and officers, whether serving us or at our request any other entity, or (2) other employees and agents to such extent as shall be authorized by our Trustees or our bylaws. Our declaration of trust also requires us to advance expenses to our Trustees and officers under the procedures therein and to the full extent permitted by law.
We have also entered into indemnification agreements with our Trustees and officers providing for procedures for indemnification by us to the maximum extent permitted by Maryland law and advancements by us of certain expenses and costs relating to claims, suits or proceedings arising from their service to us. We also maintain directors’ and officers’ liability insurance for our Trustees and officers.
The SEC has expressed the opinion that indemnification of trustees, officers or persons otherwise controlling a company for liabilities arising under the Securities Act is against public policy and is therefore unenforceable.
Shareholder Liability
Under the Maryland REIT Law, a shareholder is generally not personally liable for the obligations of a REIT formed under Maryland law solely as a result of his or her status as a shareholder. Our declaration of trust provides that no shareholder will be liable for any debt, claim, demand, judgment, decree, liability or obligation of any kind by reason of being a shareholder. While we intend to conduct our business in a manner designed to minimize potential shareholder liability, we can give no assurance that you can avoid liability in all instances in all jurisdictions. We have not provided in the past and do not intend to provide insurance covering these risks to our shareholders.
Our declaration of trust and bylaws provide that, to the fullest extent permitted by law, any shareholder who violates the declaration of trust or bylaws will indemnify us and hold us harmless from and against all costs, expenses, penalties, fines and other amounts, including attorneys’ and other professional fees, arising from the shareholder’s violation, together with interest on such amounts. Our bylaws further provide that matters for which a shareholder is liable and obligated to indemnify and hold us harmless include any breach or failure to fully comply with any covenant, condition or provision of our declaration of trust or bylaws, including the advance notice provisions pertaining to shareholder nominations and other proposals, and these provisions of our declaration of trust and bylaws apply to derivative actions brought against us in which the shareholder is not the prevailing party.
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Arbitration and Exclusive Forum
Our bylaws provide that, with certain exceptions noted below, any party to a dispute, claim or controversy brought by a shareholder against us or any Trustee, officer, manager, agent or employee of us on such shareholder’s own behalf, on behalf of us or on behalf of any series or class of shares or shareholders, including derivative and class actions, all of which are referred to as disputes, may demand that the dispute be resolved through binding and final arbitration in accordance with the procedures set forth in our bylaws. If any party (including us) unilaterally makes an arbitration demand, arbitration of the dispute will be mandatory for all other parties to the dispute. These arbitration provisions do not apply to a request for a declaratory judgment or similar action regarding the meaning, interpretation or validity of any provision of our declaration of trust or our bylaws, in which case the exclusive forum provisions of our bylaws, which are described below, apply. Our shareholders agree, by virtue of becoming shareholders, that they are bound by our governing documents, including the arbitration provisions, as they may be amended from time to time. However, by agreeing to the arbitration provisions of our governing documents, our shareholders will not be deemed to have waived compliance by us with federal securities laws and the rules and regulations thereunder.
The arbitration provisions of our bylaws require the arbitration of such a dispute to be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association, or the AAA, as modified in such bylaws. With limited exceptions, each party to such an arbitration is required to bear its own costs in the arbitration, and the arbitrators may not render an award that would include shifting of such costs or, in a derivative case, award any portion of our award to the claimant or the claimant’s attorneys. Our bylaws provide that an arbitration award may be appealed pursuant to the AAA’s Optional Arbitration Rules and that, following expiration of the appeal period, the award of the arbitrators or, in the case of an appeal, the award of the appeal tribunal, shall be final and binding on the parties and shall be the sole and exclusive remedy between the parties relating to the dispute.
We believe that the arbitration provisions in our governing documents are enforceable under both state and federal law. Maryland state courts have upheld arbitration bylaws of REITs organized under the laws of Maryland. While no court has specifically addressed the enforceability of provisions in the governing documents of U.S. public companies that require their shareholders to arbitrate federal securities law claims against them, the Supreme Court has repeatedly upheld agreements to arbitrate other federal statutory claims, including those that implicate important federal policies. Nonetheless, some academics, legal practitioners and others are of the view that mandatory arbitration provisions in the governing documents of U.S. public companies for disputes arising under the federal securities laws are inconsistent with Section 14 of the Securities Act, other federal securities laws or the Private Securities Litigation Reform Act of 1995, and not enforceable with respect to such disputes. Our shareholders, or others, may challenge the enforceability of the arbitration provisions of our bylaws, and it is possible that these provisions may ultimately be determined to be unenforceable.
The exclusive forum provision of our bylaws provides that the Circuit Court for Baltimore City, Maryland, or the Circuit Court, is the sole and exclusive forum for: (1) any derivative action or proceeding brought on behalf of us; (2) any action asserting a claim for breach of a fiduciary duty owed by any Trustee, officer, manager, agent, or employee of us to us or our shareholders; (3) any action asserting a claim against us or any of our Trustees, officers, manager, agents or employees arising pursuant to Maryland law, our declaration of trust or our bylaws brought by or on behalf of a shareholder either on such shareholder’s behalf, on our behalf, or on behalf of any series or class of shares or shareholders, including claims relating to the meaning, interpretation, effect, validity, performance or enforcement of our declaration of trust or our bylaws; or (4) any action asserting a claim against us or any of our Trustees, officers, manager, agents or employees that is governed by the internal affairs doctrine of the State of Maryland. The exclusive forum provision of our bylaws does not apply to any action for which the Circuit Court does not have jurisdiction or to a dispute that has been referred to binding arbitration in accordance with our bylaws. The exclusive forum provision of our bylaws does not establish exclusive jurisdiction in the Circuit Court for claims that arise under the Securities Act, the Exchange Act or other federal securities laws if there is exclusive or concurrent jurisdiction in the federal courts.
The arbitration and exclusive forum provisions of our governing documents may limit the ability of our shareholders to pursue litigation against us, or our Trustees, officers, manager, agents or employees in
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courts that such shareholders consider favorable, which may discourage them from bringing such litigation. In addition, as described above, the arbitration provisions of our governing documents may limit the ability to collect attorneys’ fees or other damages in such litigation, which may discourage attorneys from agreeing to represent parties wishing to commence such a proceeding.
Transactions with Affiliates
Our declaration of trust allows us to enter into contracts and transactions of any kind with any person, including any of our Trustees, officers, employees or agents or any person affiliated with them. Other than general legal principles applicable to self dealing by Trustees and interested Trustee transactions, there are no prohibitions in our declaration of trust or bylaws which would prohibit dealings between us and our affiliates.
Regulatory Compliance and Disclosure
Our bylaws provide that any shareholder who, by virtue of such shareholder’s ownership of our shares of beneficial interest or actions taken by the shareholder affecting us, triggers the application of any requirement or regulation of any federal, state, municipal or other governmental or regulatory body on us or any of our subsidiaries shall promptly take all actions necessary and fully cooperate with us to ensure that such requirements or regulations are satisfied without restricting, imposing additional obligations on or in any way limiting the business, assets, operations or prospects of us or any of our subsidiaries. If the shareholder fails or is otherwise unable to promptly take such actions so as to cause satisfaction of such requirements or regulations, such shareholder shall promptly divest a sufficient number of our shares necessary to cause the application of such requirement or regulation to not apply to us or any of our subsidiaries. If the shareholder fails to cause such satisfaction or divest itself of such sufficient number of our shares by not later than the 10th day after triggering such requirement or regulation referred to in the bylaws, then any of our shares beneficially owned by such shareholder at and in excess of the level triggering the application of such requirement or regulation shall, to the fullest extent permitted by law, be deemed to constitute shares held in violation of the ownership limitations set forth in our bylaws. Also, our bylaws provide that if the shareholder who triggers the application of any regulation or requirement fails to satisfy the requirements or regulations or to take curative actions within such 10 day period, we may take all other actions which our Board of Trustees deems appropriate to require compliance or to preserve the value of our assets, and we may charge the offending shareholder for our costs and expenses as well as any damages which may result.
Our bylaws also provide that if a shareholder, by virtue of such shareholder’s ownership of our shares of beneficial interest or its receipt or exercise of proxies to vote shares owned by other shareholders, would not be permitted to vote such shareholder’s shares or proxies for such shares in excess of a certain amount pursuant to applicable law but our Board of Trustees determines that the excess shares or shares represented by the excess proxies are necessary to obtain a quorum, then such shareholder shall not be entitled to vote any such excess shares or proxies, and instead such excess shares or proxies may, to the fullest extent permitted by law, be voted by the Advisor (as defined in our declaration of trust) or another person designated by our Board of Trustees, in proportion to the total shares otherwise voted on such matter.
Business Combinations
The MGCL contains a provision which regulates business combinations with interested shareholders. This provision applies to REITs formed under Maryland law like us. Under the MGCL, business combinations such as mergers, consolidations, share exchanges, or, in circumstances specified in the statute, an asset transfer or issuance or reclassification of equity securities between a REIT formed under Maryland law and an interested shareholder or an affiliate of an interested shareholder are prohibited for five years after the most recent date on which the interested shareholder becomes an interested shareholder. Under the MGCL the following persons are deemed to be interested shareholders:
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any person who beneficially owns, directly or indirectly, 10% or more of the voting power of the REIT’s outstanding voting shares; or
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an affiliate or associate of the REIT who, at any time within the two year period immediately prior to the date in question, was the beneficial owner, directly or indirectly, of 10% or more of the voting power of the then outstanding voting shares of the REIT.
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After the five year prohibition period has ended, a business combination between a REIT and an interested shareholder generally must be recommended by the board of trustees of the REIT and must receive the following shareholder approvals:
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the affirmative vote of at least 80% of the votes entitled to be cast by holders of outstanding voting shares of the REIT; and
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the affirmative vote of at least two-thirds of the votes entitled to be cast by holders of voting shares other than shares held by the interested shareholder with whom or with whose affiliate or associate the business combination is to be effected or held by an affiliate or associate of the interested shareholder.
The shareholder approvals discussed above are not required if the REIT’s shareholders receive the minimum price set forth in the MGCL for their shares and the consideration is received in cash or in the same form as previously paid by the interested shareholder for its shares.
The foregoing provisions of the MGCL do not apply, however, to business combinations that are approved or exempted by our Board of Trustees prior to the time that the interested shareholder becomes an interested shareholder. A person is not an interested shareholder under the statute if the board of trustees approves in advance the transaction by which that shareholder otherwise would have become an interested shareholder. The board of trustees may provide that its approval is subject to compliance with any terms and conditions determined by the board of trustees. Our declaration of trust provides that we have elected not to be governed by these provisions of the MGCL.
Control Share Acquisitions
The MGCL contains a provision which regulates control share acquisitions. This provision applies to REITs formed under Maryland law like us. The MGCL provides that control shares of a REIT formed under Maryland law acquired in a control share acquisition have no voting rights except to the extent that the acquisition is approved by a vote of two-thirds of the votes entitled to be cast on the matter, excluding shares owned by the acquiror, by officers or by trustees who are employees of the trust. Control shares are voting shares, which, if aggregated with all other shares previously acquired by the acquiror, or in respect of which the acquiror is able to exercise or direct the exercise of voting power (except solely by virtue of a revocable proxy), would entitle the acquiror to exercise voting power in electing trustees within one of the following ranges of voting power:
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one tenth or more but less than one-third;
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one-third or more but less than a majority; or
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a majority or more of all voting power.
An acquiror must obtain the necessary shareholder approval each time it acquires control shares in an amount sufficient to cross one of the thresholds noted above.
Control shares do not include shares which the acquiring person is entitled to vote as a result of having previously obtained shareholder approval or shares acquired directly from a REIT. The MGCL provides for certain exceptions from the definition of control share acquisition.
A person who has made or proposes to make a control share acquisition, upon satisfaction of the conditions set forth in the statute, including an undertaking to pay the expenses of the meeting, may compel the board of trustees of the REIT to call a special meeting of shareholders to be held within 50 days of demand to consider the voting rights of the shares. If no request for a meeting is made, the trust may itself present the matter at any shareholders meeting.
If voting rights are not approved at the meeting or if the acquiring person does not deliver an acquiring person statement as required by the MGCL, then the REIT may redeem for fair value any or all of the control shares, except those for which voting rights have previously been approved. The right of the REIT to redeem control shares is subject to conditions and limitations. Fair value is determined, without regard to the absence of voting rights for the control shares, as of the date of the last control share acquisition by the acquiror or of any meeting of shareholders at which the voting rights of the shares are considered and not approved. If voting rights for control shares are approved at a shareholders meeting and the acquiror
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becomes entitled to vote a majority of the shares entitled to vote, all other shareholders may exercise appraisal rights. The fair value of the shares as determined for purposes of appraisal rights may not be less than the highest price per share paid by the acquiror in the control share acquisition.
The control share acquisition statute of the MGCL does not apply to the following:
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shares acquired in a merger, consolidation or share exchange if the REIT is a party to the transaction; or
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acquisitions approved or exempted by a provision in the declaration of trust or bylaws of the REIT adopted before the acquisition of shares.
Our declaration of trust provides that we have elected not to be governed by these provisions of the MGCL.
Subtitle 8
Subtitle 8 of Title 3 of the MGCL permits a Maryland REIT with a class of equity securities registered under the Exchange Act and at least three independent trustees to elect to be subject, by provision in its declaration of trust or bylaws or a resolution of its board of trustees and notwithstanding any contrary provision in the declaration of trust or bylaws, to any or all of five provisions:
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a classified board;
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a two-thirds vote requirement for removing a trustee;
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a requirement that the number of trustees be fixed only by vote of the trustees;
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a requirement that a vacancy on the board be filled only by the remaining trustees in office and for the replacement trustee to serve for the remainder of the full term of the class of trustees in which the vacancy occurred; and
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a majority requirement for the calling of a shareholder requested special meeting of shareholders.
Through other provisions in our declaration of trust and bylaws unrelated to Subtitle 8, we require the affirmative vote of the holders of not less than two-thirds of all of the votes entitled to be cast in the election of such Trustee for the removal of any Trustee from our Board of Trustees, which removal will be allowed only for cause, subject to conditions, and require that only our Board of Trustees may fill vacancies on our Board of Trustees and vest in our Board of Trustees the exclusive power to call meetings of our shareholders. We have previously made elections pursuant to Subtitle 8 to (1) classify our Board of Trustees and (2) vest in our Board of Trustees the exclusive power to fix the number of our Trustees. However, in 2020, we amended our declaration of trust to provide for the annual election of Trustees beginning with our 2021 annual meeting of shareholders, as discussed above under “— Trustees.”
Amendments to Our Declaration of Trust, Dissolution and Mergers
Under the Maryland REIT Law, a Maryland REIT generally cannot dissolve, amend its declaration of trust, convert or merge unless these actions are approved by at least two-thirds of all shares entitled to be cast on the matter. The Maryland REIT Law allows a trust’s declaration of trust to set a lower percentage, so long as the percentage is not less than a majority of the votes entitled to be cast on the matter. Our declaration of trust provides for approval of an amendment of the declaration of trust (except amendments to certain provisions of the declaration of trust) by a majority of shares entitled to vote on these actions provided the amendment has been approved by a two-thirds vote of our Board of Trustees. Under the Maryland REIT Law, a declaration of trust may permit the trustees by a two-thirds vote to amend the declaration of trust from time to time to qualify as a REIT under the Code or the Maryland REIT Law without the affirmative vote or written consent of the shareholders. Our declaration of trust permits this type of action by our Board of Trustees. Our declaration of trust also permits our Board of Trustees to increase or decrease the aggregate number of shares that we may issue and to effect changes in our unissued shares, as described more fully above, in each case without shareholder approval. The Maryland REIT Law provides that a majority of our entire Board of Trustees, without action by the shareholders, may, among other things, amend our declaration of trust to change the name or other designation, or the par value, of any
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class or series of our shares and the aggregate par value of our shares. Our declaration of trust and bylaws also provide that our bylaws may only be amended by our Board of Trustees.
Anti-Takeover Effect of Maryland Law and of Our Declaration of Trust and Bylaws
The following provisions in our declaration of trust and bylaws and in Maryland law could delay or prevent a change in our control:
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the prohibition in our declaration of trust and bylaws of any shareholder other than excepted holders, including RMR LLC and its affiliates, from owning more than 9.8% in value or in number, whichever is more restrictive, of any class or series of our outstanding shares, including our common shares;
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shareholder voting rights and standards for the election of Trustees and other matters which generally require larger majorities for approval of actions which are not approved by our Trustees than for actions which are approved by our Trustees;
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the authority of our Board of Trustees, and not our shareholders, to adopt, amend or repeal our bylaws and to fill vacancies on our Board of Trustees;
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the fact that only our Board of Trustees, or if there are no Trustees, our officers, may call shareholder meetings and that shareholders are not entitled to act without a meeting;
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required qualifications for an individual to serve as a Trustee and a requirement that certain of our Trustees be Managing Trustees and other Trustees be Independent Trustees;
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limitations on the ability of, and various requirements that must be satisfied in order for, our shareholders to propose nominees for election to our Board of Trustees and propose other business to be considered at a meeting of our shareholders;
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the requirement that an individual Trustee may be removed only for cause, subject to conditions, by the affirmative vote of the holders of not less than two-thirds of our common shares entitled to vote in the election of Trustees or, with or without cause, by the affirmative vote of all the remaining Trustees;
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the authority of our Board of Trustees to adopt certain amendments to our declaration of trust without shareholder approval, including the authority to increase or decrease the number of authorized shares, to create new classes or series of shares (including a class or series of shares that could delay or prevent a transaction or a change in our control that might involve a premium for our shares or otherwise be in the best interests of our shareholders), to increase or decrease the number of shares of any class or series, and to classify or reclassify any unissued shares from time to time by setting or changing the preferences, conversion or other rights, voting powers, restrictions, limitations as to distributions, qualifications or terms or conditions of redemption of our shares or any new class or series of shares created by our Board of Trustees;
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requirements that shareholders comply with regulatory requirements (including Nevada and Louisiana gaming) affecting us which could effectively limit share ownership of us, including in some cases, to 5% of our outstanding shares;
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the requirement that amendments to our declaration of trust may be made only if approved by two-thirds of our Trustees;
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the business combination provisions of the MGCL, if the provision in our declaration of trust regarding our election not to be governed by such provisions is amended or eliminated; and
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the control share acquisition provisions of the MGCL, if the provision in our declaration of trust regarding our election not to be governed by such provisions is amended or eliminated.
In 2020, we amended our declaration of trust to provide for the annual election of Trustees beginning with our 2021 annual meeting of shareholders, as discussed above under “— Trustees.” However, if we make an election pursuant to Subtitle 8 to reclassify our Board of Trustees in the future, such election could delay a change in our control. For additional information on Subtitle 8, see “— Subtitle 8” above.
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In addition, the agreement governing our revolving credit facility, or our credit agreement, also contains change in control provisions, which are further described below, and our business and property management agreements with RMR LLC contain provisions that allow for termination for convenience and termination for a performance reason but require the payment of a termination fee, as further described in those agreements.
For all of these reasons, among others, our shareholders may be unable to realize a change of control premium for any of our shares they own or otherwise effect a change of our policies.
Liability of Shareholders for Breach of Restrictions on Ownership
Our credit agreement provides that a change in our control, as defined in that agreement and including RMR LLC ceasing to act as our business manager, constitutes a default under such agreement, and a default under our credit agreement could result in a cross-default under our senior unsecured notes or our other debt. If a breach of the ownership limitations or other provisions of our declaration of trust or bylaws results in a default under our credit agreement or our other debt or other costs or expenses we may incur as a result of the breach, the shareholder or shareholders causing the breach may be liable to us and may be liable to our other shareholders for damages. These damages may be in addition to the loss of beneficial ownership and voting rights of the shares owned by the breaching shareholder or shareholders, as described above, and these damages may be material.
SELLING SECURITY HOLDERS
Selling security holders are persons or entities that, directly or indirectly, have acquired or will from time to time acquire from us, securities of the type described in this prospectus in various private or other transactions. These selling security holders may from time to time offer and sell the securities pursuant to this prospectus and any applicable prospectus supplement.
Information regarding the selling security holders, where applicable, will be set forth in a prospectus supplement, in a post-effective amendment, or in filings we make with the SEC under the Exchange Act which are incorporated herein by reference.
PLAN OF DISTRIBUTION
We or our selling security holders may sell the securities to one or more underwriters for public offering and sale by them or may sell the securities to investors directly or through agents or through a combination of any of these methods of sale. Any underwriter or agent involved in the offer and sale of the securities will be named in the applicable prospectus supplement.
The distribution of the securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at prices related to the prevailing market prices or at negotiated prices. We or our selling security holders may engage in “at the market offerings,” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market, on an exchange or otherwise. We or our selling security holders also may, from time to time, authorize underwriters acting as our or their agents to offer and sell the securities upon the terms and conditions as are set forth in the applicable prospectus supplement. In connection with the sale of securities, underwriters may be deemed to have received compensation from us or our selling security holders in the form of underwriting discounts or commissions and may also receive commissions from purchasers of securities for whom they may act as agent. Underwriters may sell securities to or through dealers, and the dealers may receive compensation in the form of discounts, concessions or commissions from the underwriters and/or commissions from the purchasers for whom they may act as agent.
Any underwriting compensation paid by us or our selling security holders to underwriters or agents in connection with the offering of securities offered by means of this prospectus, and any discounts, concessions or commissions allowed by underwriters to participating dealers, will be set forth in the applicable prospectus supplement. Underwriters, dealers and agents participating in the distribution of the securities may be deemed to be underwriters, and any discounts and commissions received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions, under the
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Securities Act. Underwriters, dealers and agents may be entitled, under agreements entered into with us or our selling security holders, to indemnification against and contribution toward civil liabilities, including liabilities under the Securities Act.
Unless otherwise specified in the applicable prospectus supplement, any securities issued hereunder (other than common shares) will be new issues of securities with no established trading market. Any underwriters or agents to or through whom such securities are sold by us or our selling security holders for public offering and sale may make a market in such securities, but such underwriters or agents will not be obligated to do so and may discontinue any market making at any time without notice. We cannot assure you as to the liquidity of the trading market for any such securities.
We or our selling security holders may enter into derivative transactions with third parties or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or our selling security holders or borrowed from us, our selling security holders or others to settle those sales or to close out any related open borrowings of shares, and may use securities received from us or our selling security holders in settlement of those derivatives to close out any related open borrowings of shares. The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement.
From time to time, one or more of the selling security holders may pledge, hypothecate or grant a security interest in some or all of the securities owned by them. The pledgees, secured parties or persons to whom the securities have been hypothecated will, upon foreclosure in the event of default, be deemed to be selling security holders. The number of the initial selling security holder’s securities offered under this prospectus will decrease as and when any pledgee, secured party or other person takes such actions. The plan of distribution for that selling security holder’s securities will otherwise remain unchanged. In addition, a selling security holder may, from time to time, sell the securities short, and, in those instances, this prospectus may be delivered in connection with the short sales and the securities offered under this prospectus may be used to cover short sales.
We will not receive any proceeds from sales of any securities by the selling security holders. We cannot assure you that the selling security holders will sell all or any portion of their securities, if any, covered by this prospectus.
In connection with an offering of securities, the underwriters may engage in stabilizing and syndicate covering transactions. These transactions may include overallotments or short sales of the securities, which involves sales of securities in excess of the principal amount of securities to be purchased by the underwriters in an offering, which creates a short position for the underwriters. Covering transactions involve purchases of the securities in the open market after the distribution has been completed in order to cover short positions. Stabilizing transactions consist of certain bids or purchases of securities made for the purpose of preventing or retarding a decline in the market price of the securities while the offering is in progress. Any of these activities may have the effect of preventing or retarding a decline in the market price of the securities being offered. They may also cause the price of the securities being offered to be higher than the price that otherwise would exist in the open market in the absence of these transactions. The underwriters may conduct these transactions on Nasdaq, in the over-the-counter market or otherwise. If the underwriters commence any of these transactions, they may discontinue them at any time.
The underwriters, dealers and agents that participate in the offer of securities covered by this prospectus, or their affiliates or associates, may engage in transactions with and perform services for us or our selling security holders and our or their affiliates in the ordinary course of business for which they may have received or receive customary fees and reimbursement of expenses.
LEGAL MATTERS
Unless otherwise specified in connection with the particular offering of any securities, Sullivan & Worcester LLP, as to certain matters of Delaware, Massachusetts and New York law, and Venable LLP, as to certain matters of Maryland law, will pass upon the validity of the offered securities for us. In connection
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with particular offerings of debt securities, and if stated in the applicable prospectus supplements, certain legal matters relating to Louisiana law will be passed upon for us by Stone Pigman Walther Wittmann L.L.C. Sullivan & Worcester LLP has passed upon certain tax matters in an opinion filed with the registration statement of which this prospectus is a part. Sullivan & Worcester LLP also represents RMR LLC, our manager, TA, Sonesta and certain of their affiliates on various matters.
EXPERTS
The financial statements, and the related financial statement schedule as of and for the year ended December 31, 2020, incorporated in this prospectus by reference from our Annual Report on Form 10-K for the year ended December 31, 2020, and the effectiveness of our internal control over financial reporting as of December 31, 2020 have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports, which are incorporated herein by reference. Such financial statements and financial statement schedule have been so incorporated in reliance upon the reports of Deloitte & Touche LLP given upon their authority as experts in accounting and auditing.
The consolidated financial statements as of and for the two years ended December 31, 2019 appearing in our Annual Report (Form 10-K) for the year ended December 31, 2020, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. The Subsidiary Guarantors do not currently file separate reports, proxy statements or other information with the SEC. This prospectus is part of a registration statement and does not contain all of the information set forth in the registration statement. You can review our SEC filings and the registration statement by accessing the SEC’s website at www.sec.gov or by accessing our website at www.svcreit.com. Website addresses are included in this prospectus as textual references only and the information in such websites, and any information that is linked to our website (other than our filings with the SEC that are expressly incorporated by reference as set forth under “Information Incorporated by Reference”), is not incorporated by reference into this prospectus or related registration statement.
INFORMATION INCORPORATED BY REFERENCE
The SEC allows us to “incorporate by reference” the information we file with them, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. Statements in this prospectus regarding the contents of any contract or other document may not be complete. You should refer to the copy of the contract or other document filed as an exhibit to the registration statement. Later information filed with the SEC will update and supersede information we have included or incorporated by reference in this prospectus.
We incorporate by reference the documents listed below and any filings made after the date of the initial filing of the registration statement of which this prospectus is a part made with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until the offering of the securities made by this prospectus is completed or terminated (other than, in each case, documents or information deemed to have been furnished and not filed in accordance with SEC rules, including under Items 2.02 and 7.01 (and any related Item 9.01) of Form 8-K):
•
•
our Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 2021 and June 30, 2021;
•
our Current Reports on Form 8-K filed with the SEC on January 19, 2021 and June 17, 2021;
•
the information identified as incorporated by reference under Items 10, 11, 12, 13 and 14 of Part III of our Annual Report on Form 10-K for the fiscal year ended December 31, 2020, from our definitive Proxy Statement for our 2021 Annual Meeting of Shareholders dated April 12, 2021; and
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•
We will provide you with a copy of the information we have incorporated by reference, excluding exhibits other than those which we specifically incorporate by reference in this prospectus. You may obtain this information at no cost by writing or telephoning us at: Two Newton Place, 255 Washington Street, Suite 300, Newton, Massachusetts, 02458-1634, (617) 796-8232, Attention: Investor Relations.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution
Set forth below are the fees and expenses (all of which will be borne by the registrants unless otherwise provided in the applicable prospectus supplement) to be incurred in connection with the issuance and distribution of the offered securities, other than underwriting discounts and commissions (if any).
| |
SEC Registration Fee
|
| | | $ | * | | |
| |
Trustee’s Fees and Expenses
|
| | | | ** | | |
| |
Printing Fees and Expenses
|
| | | | ** | | |
| |
Legal Fees and Expenses
|
| | | | ** | | |
| |
Accounting Fees and Expenses
|
| | | | ** | | |
| |
Rating Agency Fees
|
| | | | ** | | |
| |
Miscellaneous Fees and Expenses
|
| | | | ** | | |
| |
Total:
|
| | | $ | ** | | |
*
To be deferred pursuant to Rule 456(b) under the Securities Act of 1933, as amended, or the Securities Act, and calculated in connection with an offering of securities under this registration statement pursuant to Rule 457(r) under the Securities Act.
**
These fees cannot be estimated at this time as they are calculated based on the securities offered and the number of issuances. An estimate of the aggregate expenses in connection with the sale and distribution of the securities being offered will be included in the applicable prospectus supplement.
Item 15.
Indemnification of Directors and Officers
The following is a summary of the statutes, charter and bylaw provisions or other arrangements under which the registrants’ trustees, directors and officers are insured or indemnified against liability in their capacities as such.
Registrants Organized under Maryland Law
Real Estate Investment Trusts, or REITs, and Corporations
Service Properties Trust, or SVC, and certain other registrants are organized as Maryland REITs. Certain other registrants are organized as Maryland corporations. Maryland law applicable to real estate investment trusts, or the Maryland REIT Law, permits a Maryland REIT to include in its declaration of trust a provision limiting the liability of its trustees and officers to the REIT and its shareholders for money damages except for liability resulting from (1) actual receipt of an improper benefit or profit in money, property or services or (2) active and deliberate dishonesty by the trustee or officer that was established by a final judgment as being material to the cause of action adjudicated. SVC’s declaration of trust, and the declarations of trust of each other registrant that is a Maryland REIT, contains a provision which eliminates the liability of its trustees and officers to the maximum extent permitted by Maryland law.
The Maryland REIT Law also permits a Maryland REIT to indemnify and advance expenses to its trustees, officers, employees and agents to the same extent permitted by the Maryland General Corporation Law, or the MGCL, for directors and officers of Maryland corporations. The MGCL permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made, or are threatened to be made, a party by reason of their service in those capacities. However, a Maryland corporation is not permitted to provide this type of indemnification if the following is established:
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•
the act or omission of the director or officer was material to the matter giving rise to the proceeding and (1) was committed in bad faith or (2) was the result of active and deliberate dishonesty;
•
the director or officer actually received an improper personal benefit in money, property or services; or
•
in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.
Under Maryland law, a Maryland corporation may not indemnify a director or officer in a suit by the corporation or in its right in which the director or officer was adjudged liable to the corporation or in a suit in which the director or officer was adjudged liable on the basis that a personal benefit was improperly received. A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct or was adjudged liable on the basis that personal benefit was improperly received. However, indemnification for an adverse judgment in a suit by the corporation or in its right, or for a judgment of liability on the basis that a personal benefit was improperly received, is limited to expenses. The MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of the following:
•
a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and
•
a written undertaking by him or her, or on his or her behalf, to repay the amount paid or reimbursed by the corporation if it is ultimately determined that this standard of conduct was not met.
SVC’s declaration of trust requires it, to the maximum extent permitted by Maryland law, in effect from time to time, to indemnify (1) its trustees and officers, whether serving SVC or at its request any other entity, or (2) other employees and agents to such extent as shall be authorized by SVC’s Trustees or bylaws. SVC’s declaration of trust also requires it to advance expenses to its trustees and officers under the procedures therein and to the full extent permitted by law.
The declarations of trust or bylaws of certain other registrants that are Maryland REITs require such registrants, to the maximum extent permitted by Maryland law, in effect from time to time, to indemnify (1) any present or former trustee, officer or shareholder of it, (2) any individual who, while a trustee or officer of such registrant and at its request, serves or has served as a director, officer, shareholder, partner, or trustee of another REIT, corporation, partnership, joint venture, trust, employee benefit plan or other enterprise who has been successful, on the merits or otherwise, in the defense of a proceeding to which he or she was made a party by reason of his or her service in that capacity, and (3) any present or former trustee or officer of such registrant from any claim or liability to which such person may become subject or may incur by reason of his or her service in that capacity unless it is established that (x) his or her act or omission was material to the matter giving rise to the proceeding and was committed in bad faith or as the result of active and deliberate dishonesty, (y) he or she actually received an improper personal benefit in money, property or services or (z) in the case of a criminal proceeding, had reasonable cause to believe that his or her act or omission was unlawful. The declaration of trust or bylaws of certain other registrants that are Maryland REITs obligate such registrants to pay or reimburse the persons serving in the capacities described above for reasonable expenses in advance of final disposition of a proceeding. The declaration of trust or bylaws of certain other registrants that are Maryland REITs also permit such registrants to indemnify and advance expenses to any person who served any predecessor of it in the capacities described above and any present or former employee or agent of it or any such predecessor.
The declaration of trust or bylaws of HPTWN Properties Trust, a Maryland REIT, requires such registrant, to the maximum extent permitted by Maryland law, in effect from time to time, to indemnify (1) any present or former trustee, officer or shareholder of it, (2) any individual who, while a trustee, officer or shareholder of such registrant and at its request, serves or has served as a director, officer, shareholder, partner, or trustee of another REIT, corporation, partnership, joint venture, trust, employee benefit plan or other enterprise who has been successful, on the merits or otherwise, in the defense of a proceeding to which he or she was made a party by reason of his or her service in that capacity, and (3) any present or former trustee or officer of such registrant from any claim or liability to which such person may become
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subject or may incur by reason of his or her service in that capacity unless it is established that (x) his or her act or omission was material to the matter giving rise to the proceeding and was committed in bad faith or as the result of active and deliberate dishonesty, (y) he or she actually received an improper personal benefit in money, property or services or (z) in the case of a criminal proceeding, had reasonable cause to believe that his or her act or omission was unlawful and (4) any shareholder or former shareholder of such registrant from any claim or liability to which such person may become subject by reason of such status. The declaration of trust or bylaws of HPTWN Properties Trust obligates such registrant to pay or reimburse the persons serving in the capacities described above for reasonable expenses in advance of final disposition of a proceeding. The declaration of trust or bylaws of HPTWN Properties Trust also permits such registrant to indemnify and advance expenses to any person who served any predecessor of it in the capacities described above and any present or former employee or agent of it or any such predecessor.
The declarations of trust or bylaws of HPT Geary Properties Trust and Highway Ventures Properties Trust, each a Maryland REIT, require such registrants to indemnify, to the maximum extent permitted by Maryland law, (1) any present or former trustee, officer, shareholder, employee or agent of it or (2) any individual who, while a trustee of such registrant and at its request, serves or has served as a trustee, director, officer, partner, employee or agent of another REIT, corporation, partnership, joint venture, trust, employee benefit plan or other enterprise from any claim or liability to which such person may become subject or may incur by reason of his or her service in that capacity. The declarations of trust or bylaws of HPT Geary Properties Trust and Highway Ventures Properties Trust also obligate such registrants to pay or reimburse the persons serving in the capacities described above for reasonable expenses in advance of final disposition of a proceeding.
The declaration of trust or bylaws of HPT Suite Properties Trust, a Maryland REIT, requires such registrant to indemnify, to the full extent permitted by Maryland law, (1) any trustee or officer, whether serving such registrant or at its request any other entity, or (2) other employees and agents as may be authorized by the trustees of such registrant. The declaration of trust or bylaws of HPT Suite Properties Trust also obligates such registrant to pay or reimburse the persons serving in the capacities described above for reasonable expenses in advance of final disposition of a proceeding.
The charters or bylaws of certain registrants that are Maryland corporations require such registrants, to the maximum extent permitted by Maryland law, in effect from time to time, to indemnify (1) any present or former director or officer of it or (2) any individual who, while a director or officer of such registrant and at its request, serves or has served as a trustee, director, officer, partner, member or manager of another REIT, corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise, in each case who is made or threatened to be made a party to a proceeding by reason of his or her service in that capacity and to pay or reimburse their reasonable expenses in advance of final disposition of the proceeding. The charters or bylaws of certain other registrants that are Maryland corporations require such registrants, to the maximum extent permitted by Maryland law, in effect from time to time, to indemnify (1) any present or former director or officer of it or (2) any individual who, while a director of such registrant and at its request, serves or has served as a trustee, director, officer or partner of another REIT, corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, in each case who is made or threatened to be made a party to a proceeding by reason of his or her service in that capacity and to pay or reimburse their reasonable expenses in advance of final disposition of the proceeding. The bylaws of HPT TRS Inc., a Maryland corporation, require such registrant, to the maximum extent permitted by Maryland law, in effect from time to time, to indemnify (1) any present or former director, officer or stockholder of it or (2) any individual who, while a director or officer of such registrant and at its request, serves or has served as a trustee, director, officer, partner, employee or agent of another REIT, corporation, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to a proceeding by reason of his or her service in that capacity and to pay or reimburse their reasonable expenses in advance of final disposition of the proceeding.
The charters or bylaws of each registrant that is a Maryland corporation also permit such registrant to indemnify and advance expenses to any person who served any predecessor of it in the capacities described above and any present or former employee or agent of it or any such predecessor.
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Limited Liability Companies
Certain registrants are limited liability companies organized under Maryland law. Subject to standards and restrictions as are set forth in the limited liability company operating agreement, or the LLC agreement, of such Maryland limited liability company, the Maryland Limited Liability Company Act empowers a Maryland limited liability company to indemnify and hold harmless any member or manager or other persons from and against any and all claims and demands whatsoever.
The LLC agreement of each registrant that is a Maryland limited liability company requires such registrants, to the maximum extent permitted by Maryland law, in effect from time to time, to indemnify any director, officer or employee of it for any loss, damage or claim by reason of any act or omission performed or omitted by such person in good faith on behalf of such registrant and in a manner reasonably believed to be within the scope of the authority conferred on such person by the LLC agreement of such registrant, provided that no such person will be entitled to indemnification from such registrant in respect of any loss, damage or claim incurred by such person by reason of such person’s gross negligence or willful misconduct with respect to such acts and omissions.
Registrants Organized under Delaware Law
Corporation
One registrant, HPTMI Hawaii, Inc., is a corporation organized under Delaware law. The Delaware General Corporation Law authorizes a corporation to indemnify its directors, officers, employees and agents against certain liabilities (including attorneys’ fees, judgments, fines and expenses) they may incur in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation, or a derivative action), if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. The Delaware General Corporation Law also provides that such persons have a right to indemnification against expenses where they have been successful on the merits or otherwise in defense of such actions.
The bylaws of HPTMI Hawaii, Inc. permit such registrant to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, partner, member, trustee, employee or agent of another corporation, partnership, joint venture, limited liability company, trust or other enterprise or non-profit entity, so long as such person acted in good faith and in a manner reasonably believed to be in (or not opposed to) the best interests of the corporation, and with respect to any criminal action or proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. The bylaws of HPTMI Hawaii, Inc. further permit such registrant to reimburse any of the above persons for reasonable expenses where they have been successful on the merits or otherwise in defense of such actions.
Limited Liability Companies
Certain registrants are limited liability companies organized under Delaware law. Subject to standards and restrictions as are set forth in the LLC agreement of such Delaware limited liability company registrant, the Delaware Limited Liability Company Act empowers a Delaware limited liability company to indemnify and hold harmless any member or manager or other persons from and against any and all claims and demands whatsoever.
The LLC agreement of each registrant that is a Delaware limited liability company requires such registrants, to the maximum extent permitted by Delaware law, in effect from time to time, to indemnify any director, officer or employee of it for any loss, damage or claim by reason of any act or omission performed or omitted by such person in good faith on behalf of such registrant and in a manner reasonably believed to be within the scope of the authority conferred on such person by the LLC agreement of such registrant, provided that no such person will be entitled to indemnification from such registrant in respect of any loss,
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damage or claim incurred by such person by reason of such person’s gross negligence or willful misconduct with respect to such acts and omissions.
Registrant Organized under Louisiana Law
Royal Sonesta, Inc. is a corporation organized under Louisiana law. Sections 1-850 through 1-859 of the Louisiana Business Corporation Act provide in part that a corporation may indemnify each of its current or former directors and officers against liability (including judgments, settlements, penalties, fines, or reasonable expenses) incurred by the indemnitee in a proceeding to which the indemnitee is a party if the indemnitee acted in good faith and reasonably believed either (i) in the case of conduct in an official capacity, that such indemnitee’s conduct was in the best interests of the corporation or (ii) in all other cases, that such indemnitee’s conduct was at least not opposed to the best interests of the corporation, and, with respect to any criminal proceeding, the indemnitee had no reasonable cause to believe such indemnitee’s conduct was unlawful. The corporation may also advance expenses to the indemnitee provided that the indemnitee delivers (i) a written affirmation of such indemnitee’s good faith belief that the relevant standard of conduct has been met by such indemnitee or that the proceeding involves conduct for which liability has been eliminated and (ii) a written undertaking to repay any funds advanced if (a) such indemnitee is not entitled to mandatory indemnification by virtue of being wholly successful, on the merits or otherwise, in the defense of any such proceeding and (b) it is ultimately determined that such indemnitee has not met the relevant standard of conduct. A corporation shall indemnify a director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because he or she was a director of the corporation against expenses incurred by the director in connection with the proceeding. A corporation has the power to obtain and maintain insurance on behalf of any person who is or was acting for it, regardless of whether the corporation has the legal authority to indemnify, or advance expenses to, the insured person with respect to such liability.
The Articles of Incorporation and bylaws of Royal Sonesta, Inc. do not address indemnify of its officers or directors. However, pursuant to the Louisiana Business Corporation Act, such registrant must indemnify a director who is wholly successful, on the merits or otherwise, in the defense of any proceeding to which the director was a party because he or she was a director of such registrant against expenses incurred by the director in connection with the proceeding.
Registrant Organized under New York Law
HPT SN Holding, Inc. is a corporation organized under New York law. The New York Business Corporation Law empowers a New York corporation to indemnify and hold harmless any director or officer or other person from and against any and all claims and demands whatsoever, subject to such standards and restrictions, if any, as are set forth in its certificate of incorporation or bylaws.
The bylaws of HPT SN Holding, Inc. require such registrant, to the maximum extent permitted by New York law, in effect from time to time, to indemnify any person who was or is a party or is threatened to be made a party to any action or proceeding by reason of the fact that such person is or was a director or officer of the corporation, or is or was serving at the request of the corporation in any capacity with another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, so long as such person acted in good faith, for a purpose which was reasonably believed to be in, or in the case of service for any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, not opposed to, the best interests of the corporation, and with respect to any criminal action or proceeding, such person had no reasonable cause to believe his or her conduct was unlawful. The bylaws of HPT SN Holding, Inc. further permit the advancement of expenses to such individuals in connection with any such proceeding if certain requirements are satisfied.
Registrants Governed by Massachusetts Law
Nominee Trust
HPT CW MA Realty Trust is a nominee trust governed by Massachusetts law. Massachusetts law recognizes that a trust agreement may provide that a trustee is not personally liable for obligations of the trust, and that a trustee may be indemnified out of trust assets.
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The declaration of trust of HPT CW MA Realty Trust requires the beneficiaries of such registrant to indemnify and hold the trustees of such registrant harmless form and against any and all loss, cost, damage and expense incurred by such trustees by virtue of their status as owner of the trust property or resulting from any action taken by such trustees at the direction of the registrant’s beneficiaries. The declaration of trust of HPT CW MA Realty Trust further states that no trustee shall be held to any personal liability whatsoever in tort, contract or otherwise for any error of judgment or for any loss arising out of any act or omission in the execution of the trust, so long as such trustee acts in good faith, and shall only be responsible for such trustee’s own bad faith or willful malfeasance.
Limited Liability Company
HPT Cambridge LLC is a limited liability company organized under Massachusetts law. Subject to standards and restrictions as are set forth in the LLC agreement of such Massachusetts limited liability company, the Massachusetts Limited Liability Company Act empowers a Massachusetts limited liability company to indemnify and hold harmless any member or manager or other persons from and against any and all claims and demands, provided that it is not adjudicated that such person did not act in good faith and with a reasonable belief that such actions were in the best interest of the company.
The LLC agreement of HPT Cambridge LLC requires such registrant, to the maximum extent permitted by Massachusetts law, in effect from time to time, to indemnify any director, officer or employee of it for any loss, damage or claim by reason of any act or omission performed or omitted by such person in good faith on behalf of such registrant and in a manner reasonably believed to be within the scope of the authority conferred on such person by the LLC agreement of such registrant, provided that no such person will be entitled to indemnification from such registrant in respect of any loss, damage or claim incurred by such person by reason of such person’s gross negligence or willful misconduct with respect to such acts and omissions.
Other Information
SVC has also entered into indemnification agreements with its Trustees and officers providing for procedures for indemnification by SVC to the maximum extent permitted by Maryland law and advancements by SVC of certain expenses and costs relating to claims, suits or proceedings arising from their service to SVC and its subsidiaries, including the other registrants. SVC also maintain directors’ and officers’ liability insurance for its Trustees and officers and the trustees, directors and officers of its subsidiaries, including the other registrants.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, or the Securities Act, may be permitted to the registrants’ trustees, directors, officers or persons controlling us pursuant to the foregoing provisions of Maryland law and SVC’s declaration of trust, the registrants have been informed that in the opinion of the Securities and Exchange Commission, or the SEC, such indemnification is against public policy as expressed in the Securities Act and therefore is unenforceable. Reference is made to SVC’s declaration of trust, as amended and supplemented, filed as Exhibit 4.1 to SVC’s Post-Effective Amendment No. 2 to Registration Statement on Form S-3, File No. 333-226944. Reference is also made to SVC’s indemnification agreements with its Trustees and officers, a form of which is filed as Exhibit 10.1 to SVC’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2020.
Any underwriting agreements (Exhibits 1.1 through 1.5) that may be filed by amendment or incorporated by reference may contain provisions for indemnification by the underwriters of the registrants’ trustees, directors, officers and controlling persons.
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Item 16.
Exhibits
| |
Exhibit
No. |
| |
Description
|
|
| | 1.1 | | | Form of Underwriting Agreement (for Debt Securities).* | |
| | 1.2 | | | Form of Underwriting Agreement (for Preferred Shares).* | |
| | 1.3 | | | Form of Underwriting Agreement (for Common Shares).* | |
| | 1.4 | | | Form of Underwriting Agreement (for Depositary Shares).* | |
| | 1.5 | | | Form of Underwriting Agreement (for Warrants).* | |
| | 4.1 | | | Composite Copy of Amended and Restated Declaration of Trust, dated August 21, 1995, as amended to date. (Incorporated by reference to our Post-Effective Amendment No. 2 to Registration Statement on Form S-3, File No. 333-226944.) | |
| | 4.2 | | | | |
| | 4.3 | | | | |
| | 4.4 | | | Indenture, dated as of February 3, 2016, between Service Properties Trust (formerly Hospitality Properties Trust) and U.S. Bank National Association. (Incorporated by reference to our Current Report on Form 8-K filed on February 4, 2016.) | |
| | 4.5 | | | | |
| | 4.6 | | | | |
| | 4.7 | | | | |
| | 4.8 | | | Form of Senior Debt Security.* | |
| | 4.9 | | | Form of Senior Subordinated Debt Security.* | |
| | 4.10 | | | Form of Junior Subordinated Debt Security.* | |
| | 4.11 | | | Form of Articles Supplementary for Preferred Shares.* | |
| | 4.12 | | | Form of Deposit Agreement, including form of Depositary Receipt for Depositary Shares.* | |
| | 4.13 | | | Form of Preferred Share Certificate.* | |
| | 4.14 | | | | |
| | 4.15 | | | Form of Warrant Agreement, including form of Warrant.* | |
| | 5.1 | | | | |
| | 5.2 | | | | |
| | 5.3 | | | | |
| | 8.1 | | | | |
| | 22.1 | | | | |
| | 23.1 | | | | |
| | 23.2 | | | | |
| | 23.3 | | | | |
| | 23.4 | | | | |
| | 23.5 | | | |
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| |
Exhibit
No. |
| |
Description
|
|
| | 23.6 | | | | |
| | 24.1 | | | | |
| | 25.1 | | | Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the Indenture dated February 3, 2016, between Service Properties Trust and U.S. Bank National Association.** | |
| | 25.2 | | | | |
| | 25.3 | | | | |
| | 25.4 | | | |
*
To be filed by amendment or incorporated by reference from documents filed or to be filed with the SEC under the Securities Exchange Act of 1934, as amended, in connection with the offering of any securities, as appropriate.
**
Filed herewith.
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Item 17.
Undertakings
The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (i), (ii) and (iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or
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modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrants under the Securities Act of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrants undertake that in a primary offering of securities of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrants will be sellers to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrants relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrants or used or referred to by the undersigned registrants;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrants or its securities provided by or on behalf of the undersigned registrants; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser.
(6) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(7) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to trustees, directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of expenses incurred or paid by a trustee, director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such trustee, director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
II-10
EXHIBIT INDEX
| |
Exhibit
No. |
| |
Description
|
|
| | 1.1 | | | Form of Underwriting Agreement (for Debt Securities).* | |
| | 1.2 | | | Form of Underwriting Agreement (for Preferred Shares).* | |
| | 1.3 | | | Form of Underwriting Agreement (for Common Shares).* | |
| | 1.4 | | | Form of Underwriting Agreement (for Depositary Shares).* | |
| | 1.5 | | | Form of Underwriting Agreement (for Warrants).* | |
| | 4.1 | | | Composite Copy of Amended and Restated Declaration of Trust, dated August 21, 1995, as amended to date. (Incorporated by reference to our Post-Effective Amendment No. 2 to Registration Statement on Form S-3, File No. 333-226944.) | |
| | 4.2 | | | | |
| | 4.3 | | | | |
| | 4.4 | | | Indenture, dated as of February 3, 2016, between Service Properties Trust (formerly Hospitality Properties Trust) and U.S. Bank National Association. (Incorporated by reference to our Current Report on Form 8-K filed on February 4, 2016.) | |
| | 4.5 | | | | |
| | 4.6 | | | | |
| | 4.7 | | | | |
| | 4.8 | | | Form of Senior Debt Security.* | |
| | 4.9 | | | Form of Senior Subordinated Debt Security.* | |
| | 4.10 | | | Form of Junior Subordinated Debt Security.* | |
| | 4.11 | | | Form of Articles Supplementary for Preferred Shares.* | |
| | 4.12 | | | Form of Deposit Agreement, including form of Depositary Receipt for Depositary Shares.* | |
| | 4.13 | | | Form of Preferred Share Certificate.* | |
| | 4.14 | | | | |
| | 4.15 | | | Form of Warrant Agreement, including form of Warrant.* | |
| | 5.1 | | | | |
| | 5.2 | | | | |
| | 5.3 | | | | |
| | 8.1 | | | | |
| | 22.1 | | | | |
| | 23.1 | | | | |
| | 23.2 | | | | |
| | 23.3 | | | | |
| | 23.4 | | | | |
| | 23.5 | | | |
II-11
| |
Exhibit
No. |
| |
Description
|
|
| | 23.6 | | | | |
| | 24.1 | | | | |
| | 25.1 | | | Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act of 1939, as amended, of the trustee under the Indenture dated February 3, 2016, between Service Properties Trust and U.S. Bank National Association.** | |
| | 25.2 | | | | |
| | 25.3 | | | | |
| | 25.4 | | | |
*
To be filed by amendment or incorporated by reference from documents filed or to be filed with the SEC under the Securities Exchange Act of 1934, as amended, in connection with the offering of any securities, as appropriate.
**
Filed herewith.
II-12
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the undersigned registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Newton, Commonwealth of Massachusetts, on August 20, 2021.
| | | | | SERVICE PROPERTIES TRUST | | |||
| | | | | By: | | |
/s/ John G. Murray
John G. Murray
President and Chief Executive Officer |
|
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-3 has been signed below by the following persons in the capacities and on the dates indicated; and each of the undersigned officers and trustees of Service Properties Trust, hereby severally constitutes and appoints each of John G. Murray and Brian E. Donley to sign for her or him, and in her or his name in the capacity indicated below, this registration statement for the purpose of registering such securities under the Securities Act of 1933, as amended, and any and all amendments thereto, hereby ratifying and confirming their signatures as they may be signed by their attorneys to this registration statement and any and all amendments thereto.
| |
Signature
|
| |
Title
|
| |
Date
|
|
| |
/s/ John G. Murray
John G. Murray
|
| | Managing Trustee; President and Chief Executive Officer | | |
August 20, 2021
|
|
| |
/s/ Brian E. Donley
Brian E. Donley
|
| |
Chief Financial Officer and Treasurer
(principal financial officer and principal accounting officer) |
| |
August 20, 2021
|
|
| |
/s/ Laurie B. Burns
Laurie B. Burns
|
| | Independent Trustee | | |
August 20, 2021
|
|
| |
/s/ Robert E. Cramer
Robert E. Cramer
|
| | Independent Trustee | | |
August 20, 2021
|
|
| |
/s/ Donna D. Fraiche
Donna D. Fraiche
|
| | Independent Trustee | | |
August 20, 2021
|
|
| |
/s/ John L. Harrington
John L. Harrington
|
| | Independent Trustee | | |
August 20, 2021
|
|
| |
/s/ William A. Lamkin
William A. Lamkin
|
| | Independent Trustee | | |
August 20, 2021
|
|
| |
/s/ Adam D. Portnoy
Adam D. Portnoy
|
| | Managing Trustee | | |
August 20, 2021
|
|
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, each of the following co-registrants certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Newton, Commonwealth of Massachusetts, on August 20, 2021.
| | BANNER NEWCO LLC | | | HPT TRS INC. | |
| | CAMBRIDGE TRS, INC. | | | HPT TRS MRP, INC. | |
| | HARBOR COURT ASSOCIATES, LLC | | | HPT TRS SPES II, INC. | |
| | HIGHWAY VENTURES BORROWER LLC | | | HPT TRS WYN, INC. | |
| | HIGHWAY VENTURES LLC | | | HPT WACKER DRIVE TRS LLC | |
| | HIGHWAY VENTURES PROPERTIES LLC | | | HPTCY PROPERTIES TRUST | |
| | HIGHWAY VENTURES PROPERTIES TRUST | | | HPTMI HAWAII, INC. | |
| | HPT CAMBRIDGE LLC | | | HPTMI PROPERTIES TRUST | |
| | HPT CLIFT TRS LLC | | | HPTWN PROPERTIES TRUST | |
| | HPT CW MA REALTY LLC | | | ROYAL SONESTA, INC. | |
| | HPT CY TRS, INC. | | | SVC GATEHALL DRIVE TRS LLC | |
| | HPT GEARY ABC HOLDINGS LLC | | | SVC HOLDINGS LLC | |
| | HPT GEARY PROPERTIES TRUST | | | SVC JERSEY CITY TRS LLC | |
| | HPT IHG CHICAGO PROPERTY LLC | | | SVC MORRIS PLAINS TRS LLC | |
| | HPT IHG GA PROPERTIES LLC | | | SVC NANUET TRS LLC | |
| | HPT IHG-2 PROPERTIES TRUST | | | SVC NJ TRS LLC | |
| | HPT IHG-3 PROPERTIES LLC | | | SVC RANDOLPH STREET TRS LLC | |
| | HPT SN HOLDING, INC. | | | SVC REDONDO BEACH TRS LLC | |
| | HPT STATE STREET TRS LLC | | | SVCN 1 LLC | |
| | HPT SUITE PROPERTIES TRUST | | | SVCN 2 LLC | |
| | HPT TA PROPERTIES LLC | | | SVCN 3 LLC | |
| | HPT TA PROPERTIES TRUST | | | SVCN 4 LLC | |
| | HPT TRS IHG-2, INC. | | | SVCN 5 LLC | |
| | | | | By: | | |
/s/ John G. Murray
John G. Murray
President and Chief Executive Officer |
|
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-3 has been signed below by the following persons in the capacities and on the dates indicated; and each of the undersigned officers and trustees or directors of each of the above co-registrants, hereby severally constitutes and appoints each of John G. Murray and Brian E. Donley to sign for him, and in his name in the capacity indicated below, this registration statement for the purpose of registering such securities under the Securities Act of 1933, as amended, and any and all amendments thereto, hereby ratifying and confirming their signatures as they may be signed by their attorneys to this registration statement and any and all amendments thereto.
| |
Signature
|
| |
Title
|
| |
Date
|
|
| |
/s/ John G. Murray
John G. Murray
|
| | Trustee / Director, President and Chief Executive Officer | | |
August 20, 2021
|
|
| |
/s/ Brian E. Donley
Brian E. Donley
|
| |
Chief Financial Officer and Treasurer
(principal financial officer and principal accounting officer) |
| |
August 20, 2021
|
|
| |
/s/ Adam D. Portnoy
Adam D. Portnoy
|
| | Trustee / Director | | |
August 20, 2021
|
|
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the following co-registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Newton, Commonwealth of Massachusetts, on August 20, 2021.
| | | | | HPT CW MA REALTY TRUST | | |||
| | | | | By: | | |
/s/ John G. Murray
John G. Murray
as Trustee and not individually |
|
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement on Form S-3 has been signed below by the following persons in the capacities and on the dates indicated; and each of the undersigned trustees of each of the above co-registrants, hereby severally constitutes and appoints each of John G. Murray and Brian E. Donley to sign for him, and in his name in the capacity indicated below, this registration statement for the purpose of registering such securities under the Securities Act of 1933, as amended, and any and all amendments thereto, hereby ratifying and confirming their signatures as they may be signed by their attorneys to this registration statement and any and all amendments thereto.
| |
Signature
|
| |
Title
|
| |
Date
|
|
| |
/s/ John G. Murray
John G. Murray
|
| | as Trustee and not individually | | |
August 20, 2021
|
|
| |
/s/ Adam D. Portnoy
Adam D. Portnoy
|
| | as Trustee and not individually | | |
August 20, 2021
|
|
Exhibit 5.1
 |
 |
 |
August 20, 2021
Service Properties Trust
Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-3 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), of Service Properties Trust, a Maryland real estate investment trust (the “Company”), proposed to be filed by the Company with the Securities and Exchange Commission (the “Commission”) on or about the date hereof, you have requested our opinions set forth below.
You have provided us with a copy of the Registration Statement, which relates to an indeterminate amount of (i) debt securities of the Company (the “Debt Securities”), which may be guaranteed by certain present and future wholly owned domestic subsidiaries of the Company (the “Guarantors” and such guarantees, the “Guarantees”), (ii) common shares of beneficial interest, $.01 par value per share, of the Company (the “Common Shares”), (iii) preferred shares of beneficial interest of the Company (the “Preferred Shares”), (iv) depositary shares representing fractional interests in Preferred Shares (“Depositary Shares”) evidenced by depositary receipts therefor (“Depositary Receipts”), and (v) warrants to purchase from or sell to the Company, or to receive from the Company the cash value of the right to purchase or sell, one or more classes of securities registered under the Registration Statement (the “Warrants” and, together with the Debt Securities, the Guarantees, the Common Shares, the Preferred Shares and the Depositary Shares, the “Registered Securities”), in each case which may be offered from time to time by the Company, the Guarantors (with respect to the Guarantees) and/or security holders of the Company, as set forth in the final prospectus that forms a part of the Registration Statement (the “Prospectus”), and as to be set forth in one or more final supplements to the Prospectus (each, a “Prospectus Supplement”). As described in the Registration Statement and the Prospectus, Registered Securities may be offered in combination with other Registered Securities. As described in the Prospectus, (i) the Debt Securities and, if applicable, the Guarantees will be issued in one or more series pursuant to the indenture filed as Exhibit 4.4 to the Registration Statement (the “Existing Indenture”), or one or more of the indentures substantially in the form of Exhibit 4.5, Exhibit 4.6 or Exhibit 4.7 to the Registration Statement (each a “Form Indenture,” and together with the Existing Indenture, the “Indentures”), between the Company and the trustee party thereto (each, a “Trustee”); (ii) the Depositary Shares will be issued in one or more series pursuant to one or more depositary agreements (each, a “Depositary Agreement”) to be entered into between the Company and the depositary party thereto (each, a “Depositary”); and (iii) the Warrants will be issued in one or more series pursuant to one or more warrant agreements (each, a “Warrant Agreement”) to be entered into between the Company and the warrant agent party thereto (each, a “Warrant Agent”). Each Indenture, Depositary Agreement and Warrant Agreement and each underwriting agreement and other agreement or instrument, if any, that are hereafter required to be filed as an exhibit to the Registration Statement by an amendment thereto or by the filing of a Form 10-K, Form 10-Q or Form 8-K by the Company under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and incorporated by reference in the Registration Statement, in connection with offerings of Debt Securities, Guarantees, Depositary Shares or Warrants are referred to herein as “Related Documents”.
Service Properties Trust
August 20, 2021
Page 2
In connection with this opinion letter, we have examined the Registration Statement, the Prospectus, the Indentures and originals or copies of such records, agreements and instruments of the Company and the Guarantors, certificates of public officials and of officers of the Company and the Guarantors and such other documents and records, and such matters of law, as we have deemed appropriate as a basis for the opinions expressed herein. In rendering such opinions, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals and the conformity to the authentic original documents of all documents submitted to us as copies. As to any facts material to the opinions expressed herein, we have relied without independent verification upon certificates of public officials, upon statements of officers or other representatives of the Company and the Guarantors and statements of fact contained in documents we have examined.
For purposes of the opinions expressed herein, we have assumed that: (i) the Company and each Guarantor is an entity duly formed and validly existing and in good standing under the laws of its jurisdiction of formation, (ii) the Company and, if applicable, the Guarantors have the requisite organizational and legal power and authority to issue and offer the Registered Securities to be issued or offered by it and enter into and perform its obligations under the Related Documents to which it is or will be a party, and the issuance of the Registered Securities to be issued from time to time and the terms and conditions thereof and of the Related Documents, and the execution and delivery of the Related Documents to which the Company and, if applicable, the Guarantors is or will be a party by the Company and, if applicable, the Guarantors, will be duly authorized and approved on behalf of the Company and the Guarantors (such approvals referred to herein as the “Entity Proceedings”), (iii) the Entity Proceedings, the issuance of the Registered Securities and the terms and conditions of Related Documents will be (A) in accordance with all applicable laws and the Company’s and, if applicable, the Guarantors’ declaration of trust and bylaws or comparable organizational documents, and (B) not in conflict with any contractual or other requirements or restrictions, including without limitation those that may be imposed by any court or governmental body having jurisdiction over the Company or, if applicable, the Guarantors that are binding on the Company or the Guarantors, as applicable, (iv) each Trustee, Depositary and Warrant Agent is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and has the requisite organizational and legal power and authority to enter into and perform its obligations under the Related Documents to which it is a party, (v) the laws of the State of New York will be chosen to govern any Indenture, any Depositary Agreement, Depositary Shares and Depositary Receipts and any Warrant Agreement and Warrants, and that such choice is and will be legally valid and binding, (vi) when executed and delivered by the parties thereto, the Related Documents will be the valid and binding obligations of the parties thereto, other than the Company and, if applicable, the Guarantors, enforceable in accordance with their terms, and (vii) except in the case of the Form Indentures, each Related Document will be properly filed by an amendment to the Registration Statement or by the filing of a Form 10-K, Form 10-Q or Form 8-K by the Company under the Exchange Act, and properly incorporated by reference in the Registration Statement, as permitted by the Securities Act and the rules and regulations of the Commission thereunder.
Service Properties Trust
August 20, 2021
Page 3
We express no opinion herein as to any laws other than the laws of the State of New York and Commonwealth of Massachusetts, the Limited Liability Company Act of the State of Delaware (the “Delaware LLC Act”), and the federal laws of the United States. In connection with our opinions herein relating to the Delaware LLC Act, we call to your attention that such opinions are based solely upon our examination of the Delaware LLC Act as currently in effect (without regard to judicial interpretations thereof or rules or regulations promulgated thereunder). We are not admitted to practice law in the State of Delaware, and we expressly disclaim any opinions regarding Delaware contract law or general Delaware law that may be incorporated expressly or by operation of law into the Delaware LLC Act or into any limited liability company operating agreement or other document entered into pursuant thereto. Insofar as this opinion letter involves matters of Maryland law and/or Louisiana law, we have, with your permission, relied solely on the opinions of Venable LLP and Stone Pigman Walther Wittmann L.L.C., each dated August 20, 2021, copies of which we understand you are filing as Exhibits 5.2 and 5.3, respectively, to the Registration Statement, and with respect to matters involving Maryland and Louisiana law our opinion is subject to the exceptions, qualifications and limitations set forth in such opinions.
Our opinions set forth below with respect to the validity or binding effect of any security or obligation may be limited by (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, marshaling, moratorium or other similar laws affecting the enforcement generally of the rights and remedies of creditors and secured parties or the obligations of debtors, (ii) general principles of equity (whether considered in a proceeding in equity or at law), including but not limited to principles limiting the availability of specific performance or injunctive relief, and concepts of materiality, reasonableness, good faith and fair dealing, (iii) the possible unenforceability under certain circumstances of provisions providing for indemnification, contribution, exculpation, release or waiver that may be contrary to public policy or violative of federal or state securities laws, rules or regulations, and (iv) the effect of course of dealing, course of performance, oral agreements or the like that would modify the terms of an agreement or the respective rights or obligations of the parties under an agreement.
Service Properties Trust
August 20, 2021
Page 4
Based on and subject to the foregoing, we are of the opinion that, as of the date hereof:
(1) Each series of Debt Securities and the Guarantees, if any, will be valid and binding obligations of the Company and the Guarantors, as applicable, enforceable in accordance with their terms, when (i) the Registration Statement shall have become effective under the Securities Act and an appropriate Prospectus Supplement with respect to the Debt Securities and the Guarantees, if any, shall have been prepared and filed with the Commission, (ii) the applicable Indenture shall have been qualified under the Trust Indenture Act of 1939, as amended (the “TIA”), and a Form T-1 shall have been filed with the Commission and become effective under the TIA with respect to the trustee executing the applicable Indenture or any related supplemental indenture, (iii) all Entity Proceedings relating to such series of Debt Securities, the Guarantees, if any, and any applicable Related Documents shall have been duly completed and shall not have been modified or rescinded, (iv) the applicable Indenture (and any related supplemental indenture) shall have been duly executed and delivered by the Company and, if applicable, the Guarantors and the applicable Trustee, and (v) such series of Debt Securities and such Guarantees, if any, shall have been (A) duly executed by the Company and the Guarantors, if any, authenticated by the Trustee as provided in the applicable Indenture and Entity Proceedings and issued by the Company and the Guarantors, if any, and (B) duly delivered to the purchasers thereof against payment of the agreed consideration therefor, as provided in the Registration Statement, the Prospectus, the applicable Prospectus Supplement, Indenture and Entity Proceedings and, if applicable, the Registered Securities and Related Documents in respect of which such Debt Securities and Guarantees, if any, are being issued upon conversion, exchange or exercise.
(2) Each series of Depositary Shares will be validly issued, and the related Depositary Receipts will be validly issued and will entitle the holders thereof to the rights specified therein and in the applicable Depositary Agreement, when (i) the Registration Statement shall have become effective under the Securities Act and an appropriate Prospectus Supplement with respect to the Depositary Shares and related Depositary Receipts shall have been prepared and filed with the Commission, (ii) all Entity Proceedings relating to such series of Depositary Shares and the underlying Preferred Shares and any applicable Related Documents shall have been duly completed and shall not have been modified or rescinded, (iii) the applicable Depositary Agreement shall have been duly executed and delivered by the Company and the applicable Depositary, (iv) the underlying Preferred Shares shall have been validly issued and are fully paid and non-assessable and shall have been duly deposited with such Depositary under such Depositary Agreement, and (v) the applicable Depositary Receipts shall have been (A) duly executed by such Depositary as provided in such Depositary Agreement and the applicable Entity Proceedings and issued by such Depositary, and (B) duly delivered to the purchasers thereof against payment of the agreed consideration therefor, as provided in the Registration Statement, the Prospectus, the applicable Prospectus Supplement, Depositary Agreement and Entity Proceedings and, if applicable, the Registered Securities and Related Documents in respect of which such Depositary Shares are being issued upon conversion, exchange or exercise.
(3) Each series of Warrants will constitute the valid and binding obligations of the Company, enforceable in accordance with their terms, when (i) the Registration Statement shall have become effective under the Securities Act and an appropriate Prospectus Supplement with respect to the Warrants shall have been prepared and filed with the Commission, (ii) all Entity Proceedings relating to such series of Warrants and the Registered Securities which are issuable upon exercise thereof and any applicable Related Documents shall have been duly completed and shall not have been modified or rescinded, (iii) the applicable Warrant Agreement shall have been duly executed and delivered by the Company and the applicable Warrant Agent, and (iv) such Warrants shall have been (A) duly executed by the Company, authenticated by the Warrant Agent as provided in the applicable Warrant Agreement and the applicable Entity Proceedings and issued by the Company, and (B) duly delivered to the purchasers thereof against payment of the agreed consideration therefor, as provided in the Registration Statement, the Prospectus, the applicable Prospectus Supplement, Warrant Agreement and Entity Proceedings and, if applicable, the Registered Securities and Related Documents in respect of which such Warrants are being issued upon conversion, exchange or exercise.
Service Properties Trust
August 20, 2021
Page 5
The opinions set forth herein are rendered as of the date hereof, and we assume no obligation to update such opinions to reflect any facts or circumstances which may hereafter come to our attention or any changes in the law which may hereafter occur (which may have retroactive effect).
This opinion is rendered to you in connection with the filing of the Registration Statement. We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the Registration Statement and to the reference to our firm under the caption “Legal Matters” in the Prospectus. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act or under the rules and regulations of the Commission promulgated thereunder.
| Very truly yours, | |
| /s/ Sullivan & Worcester LLP | |
| SULLIVAN & WORCESTER LLP |
Exhibit 5.2
 |
 |
August 20, 2021
Service Properties Trust
Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458-1634
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have served as Maryland counsel to Service Properties Trust, a Maryland real estate investment trust (the “Company”), and the Company’s subsidiaries listed on Schedule I hereto (the “Subsidiaries”), in connection with certain matters of Maryland law arising out of the registration of the following securities (collectively, the “Securities”): (i) debt securities of the Company (the “Debt Securities”); (ii) common shares of beneficial interest, $.01 par value per share (“Common Shares”), of the Company; (iii) preferred shares of beneficial interest, $.01 par value per share (“Preferred Shares”), of the Company; (iv) depositary shares of the Company representing whole or fractional interests in Preferred Shares (“Depositary Shares”); (v) warrants of the Company to purchase Debt Securities, Common Shares, Preferred Shares or Depositary Shares (“Warrants” and, together with the Debt Securities, the Common Shares, the Preferred Shares and the Depositary Shares, the “Company Securities”); and (vi) guarantees of Debt Securities (the “Subsidiary Guarantees”) by the Subsidiaries, covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), to be filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), on our about the date hereof.
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively, the “Documents”):
1. The Registration Statement and the related form of prospectus included therein;
2. The Amended and Restated Declaration of Trust, as amended and supplemented, of the Company (the “Declaration of Trust”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Amended and Restated Bylaws of the Company, as amended (the “Bylaws”), certified as of the date hereof by an officer of the Company;
4. The Declarations of Trust (the “Trust Subsidiary Declarations of Trust”) of each of the Trust Subsidiaries (as defined on Schedule I), certified by the SDAT;
Service Properties Trust
August 20, 2021
Page 2
5. The Bylaws (the “Trust Subsidiary Bylaws”) of each of the Trust Subsidiaries, certified as of the date hereof by an officer of each of the Trust Subsidiaries;
6. The Articles of Organization (the “LLC Subsidiary Articles of Organization”) of each of the LLC Subsidiaries (as defined on Schedule I), certified by the SDAT;
7. The Operating Agreements (the “LLC Subsidiary Operating Agreements”) of each of the LLC Subsidiaries, certified as of the date hereof by an officer of each of the LLC Subsidiaries;
8. The Charters (the “Corporate Subsidiary Charters”) of each of the Corporate Subsidiaries (as defined on Schedule I), certified by the SDAT;
9. The Bylaws (the “Corporate Subsidiary Bylaws” and, together with the Trust Subsidiary Declarations of Trust, Trust Subsidiary Bylaws, LLC Subsidiary Articles of Organization, LLC Subsidiary Operating Agreements and Corporate Subsidiary Charters, the “Subsidiary Documents”) of each of the Corporate Subsidiaries, certified as of the date hereof by an officer of each of the Corporate Subsidiaries;
10. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
11. Resolutions (the “Company Resolutions”) adopted by the Board of Trustees of the Company (the “Board”), relating to the registration of the Company Securities, certified as of the date hereof by an officer of the Company;
12. Resolutions (the “Subsidiary Resolutions”) adopted by the Board of Trustees, Managing Members or the Board of Directors, as the case may be, of the Subsidiaries, relating to the registration of the Guarantees, certified as of the date hereof by an officer of each of the Subsidiaries;
13. A certificate executed by an officer of the Company and each of the Subsidiaries, dated as of the date hereof; and
14. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
Service Properties Trust
August 20, 2021
Page 3
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company and the Subsidiaries) is duly authorized to do so.
3. Each of the parties (other than the Company and the Subsidiaries) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party's obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. The issuance of, and certain terms of, the Company Securities to be issued by the Company from time to time will be authorized and approved by the Board, or a duly authorized committee thereof, in accordance with the Maryland REIT Law, the Declaration of Trust, the Bylaws and the Company Resolutions (such approval referred to herein as the “Trust Proceedings”).
6. The issuance of, and certain terms of, the Guarantees to be issued by the Subsidiaries from time to time will be authorized and approved by the Board of Trustees, Managing Member or Board of Directors, as the case may be, of each of the Subsidiaries, in accordance with the applicable Subsidiary Documents and Subsidiary Resolutions (such approval referred to herein as the “Subsidiary Proceedings”).
7. Articles Supplementary creating and designating the number of shares and the terms of any class or series of Preferred Shares to be issued by the Company will be filed with and accepted for record by the SDAT prior to the issuance of such Preferred Shares.
8. Upon the issuance of any Company Securities that are Common Shares (“Common Securities”), including Common Securities which may be issued upon conversion or exercise of any other Company Securities convertible into or exercisable for Common Securities, the total number of Common Shares issued and outstanding will not exceed the total number of Common Shares that the Company is then authorized to issue under the Declaration of Trust.
Service Properties Trust
August 20, 2021
Page 4
9. Upon the issuance of any Company Securities that are Preferred Shares (“Preferred Securities”), including (i) Preferred Securities which may be issued upon conversion or exercise of any other Company Securities convertible into or exercisable for Preferred Securities and (ii) Preferred Securities represented by Depositary Shares, the total number of Preferred Shares issued and outstanding, and the total number of issued and outstanding shares of the applicable class or series of Preferred Shares designated pursuant to the Declaration of Trust, will not exceed the total number of Preferred Shares or the number of shares of such class or series of Preferred Shares that the Company is then authorized to issue under the Declaration of Trust.
10. The Securities will not be issued or transferred in violation of any restriction or limitation contained in Article VII (Restriction on Transfer and Ownership of Shares) of the Declaration of Trust.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a real estate investment trust duly formed and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. Each of the Trust Subsidiaries is a real estate investment trust duly formed and existing under and by virtue of the laws of the State of Maryland. Each of the LLC Subsidiaries is a limited liability company duly formed and existing under and by virtue of the laws of the State of Maryland. Each of the Corporate Subsidiaries is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland.
3. Upon the completion of all Trust Proceedings relating to the Debt Securities, the issuance of the Debt Securities will be duly authorized.
4. Upon the completion of all Trust Proceedings relating to the Common Securities, the issuance of the Common Securities will be duly authorized and, when and if issued and delivered against payment therefor in accordance with the Registration Statement, the Resolutions and the Trust Proceedings, the Common Securities will be validly issued, fully paid and nonassessable.
5. Upon the completion of all Trust Proceedings relating to the Preferred Securities, the issuance of the Preferred Securities will be duly authorized and, when and if issued and delivered against payment therefor in accordance with the Registration Statement, the Resolutions and the Trust Proceedings, the Preferred Securities will be validly issued, fully paid and nonassessable.
Service Properties Trust
August 20, 2021
Page 5
6. Upon the completion of all Trust Proceedings relating to the Depositary Shares, the issuance of the Depositary Shares will be duly authorized.
7. Upon the completion of all Trust Proceedings relating to the Warrants, the issuance of the Warrants will be duly authorized.
8. Upon the completion of all Subsidiary Proceedings relating to the Guarantees, the Guarantees will be duly authorized.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to the compliance with, or the applicability of, federal or state securities laws, including the securities laws of the State of Maryland.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act. Sullivan & Worcester LLP, counsel to the Company, may rely on this opinion in connection with an opinion of even date herewith to be issued by it relating to the issuance of the Securities.
| Very truly yours, | |
| /s/ Venable LLP |
SCHEDULE I
| Trust Subsidiaries | |
| Subsidiaries that are Maryland real estate investment trusts (the “Trust Subsidiaries”) | |
| 1. | Highway Ventures Properties Trust |
| 2. | HPT Geary Properties Trust |
| 3. | HPT IHG-2 Properties Trust |
| 4. | HPT Suite Properties Trust |
| 5. | HPT TA Properties Trust |
| 6. | HPTCY Properties Trust |
| 7. | HPTMI Properties Trust |
| 8. | HPTWN Properties Trust |
| LLC Subsidiaries | |
| Subsidiaries that are Maryland limited liability companies (the “LLC Subsidiaries”) | |
| 9. | Harbor Court Associates, LLC |
| 10. | Highway Ventures Properties LLC |
| 11. | HPT Clift TRS LLC |
| 12. | HPT CW MA Realty LLC |
| 13. | HPT Geary ABC Holdings LLC |
| 14. | HPT IHG Chicago Property LLC |
| 15. | HPT IHG GA Properties LLC |
| 16. | HPT IHG-3 Properties LLC |
| 17. | HPT State Street TRS LLC |
| 18. | HPT TA Properties LLC |
| 19. | HPT Wacker Drive TRS LLC |
| 20. | SVC Gatehall Drive TRS LLC |
| 21. | SVC Holdings LLC |
| 22. | SVC Jersey City TRS LLC |
| 23. | SVC Morris Plains TRS LLC |
| 24. | SVC Nanuet TRS LLC |
| 25. | SVC NJ TRS LLC |
| 26. | SVC Randolph Street TRS LLC |
| 27. | SVC Redondo Beach TRS LLC |
| Corporate Subsidiaries | |
| Subsidiaries that are Maryland corporations (the “Corporate Subsidiaries”) | |
| 28. | Cambridge TRS, Inc. |
| 29. | HPT CY TRS, Inc. |
| 30. | HPT TRS IHG-2, Inc. |
| 31. | HPT TRS Inc. |
| 32. | HPT TRS MRP, Inc. |
| 33. | HPT TRS SPES II, Inc. |
| 34. | HPT TRS WYN, Inc. |
Exhibit 5.3
| Stone Pigman Walther Wittmann l.l.c. |
| counsellors at law | ||
| 909 POYDRAS STREET, SUITE 3150 | ||
| NEW ORLEANS, LOUISIANA 70112- | Our File Number | |
| 4042 | ||
| (504) 581-3200 | ||
| FAX (504) 581-3361 | 67,060 | |
| www.stonepigman.com |
August 20, 2021
| Service Properties Trust |
| Two Newton Place |
| 255 Washington Street, Suite 300 |
| Newton, MA 02458-1634 |
| Re: | Royal Sonesta, Inc. |
Ladies and Gentlemen:
| 1. | Introduction and Documents Reviewed |
1.1 We have acted as special Louisiana (the "State") counsel to Royal Sonesta, Inc. (the "Corporation"), relating to the registration by Service Properties Trust, a real estate investment trust organized under Maryland law (the "Company"), under the Securities Act of 1933, as amended (the "Act"), and the issuance from time to time in one or more offerings of one or more series of debt securities (the "Debt Securities") to be guaranteed by certain subsidiaries of the Company, including the Corporation (collectively, the "Guarantors"), pursuant to the registration statement on Form S-3, to be filed with the Securities and Exchange Commission (the "Commission") on or about the date hereof (as so amended, the "Registration Statement").
1.2 In our capacity as special State counsel, we have examined executed copies of the following documents (collectively, the "Commission Documents"):
| (a) | The Registration Statement; and |
| (b) | The Indenture dated February 3, 2016, between the Company (f/k/a Hospitality Properties Trust) and U.S. Bank National Association (as amended, the "Indenture"). |
1.3 In our capacity as special State counsel, we have also examined copies of the following documents (collectively, the "Corporate Documents"):
| (a) | The Articles of Incorporation of the Corporation dated January 5, 1977; |
| (b) | Bylaws (undated) of the Corporation; |
Stone Pigman Walther Wittmann, L.L.C.
Page 2
August 20, 2021
| (c) | The Certificate of Good Standing of the Corporation issued by the Louisiana Secretary of State on August 2, 2021 (the "Good Standing Certificate"); |
| (d) | Action of the Board of Directors by Unanimous Written Consent dated August 12, 2021; and |
| (e) | The Certificate of the Secretary of the Corporation dated August 20, 2021. |
The Commission Documents and the Corporate Documents are sometimes collectively referred to as the "Documents".
1.4 We have also examined originals, or copies identified to our satisfaction as being true copies, of such Corporation records, documents and other instruments and have conducted such other investigations of fact and law as we have deemed necessary or advisable for purposes of this opinion. As to various questions of fact material to our opinions, we have relied on the representations and warranties contained in the Documents and the other documents executed and delivered in connection therewith, and certificates and written statements of representatives of the Corporation, and we have assumed the accuracy and completeness of the representations and warranties contained in the Documents. Except as expressly stated elsewhere in this opinion, we have not made or undertaken to make any investigation as to factual matters or as to the accuracy or completeness of any representation, warranty, data or other information, whether written or oral, that may have been made by or on behalf of the parties to any of the Documents or otherwise.
| 2. | Defined Terms |
The defined terms set forth on Exhibit A are sometimes used in this opinion. Capitalized terms used in this letter and not otherwise defined have the meanings given them in the Registration Statement.
| 3. | Assumptions |
3.1 With your permission, we have made the following assumptions in rendering this opinion.
3.2 All signatures on original documents submitted to us are genuine; all documents submitted to us as originals are authentic; all documents submitted to us as certified, conformed, fax, pdf or photostatic copies conform to authentic original documents; and all certificates of public officials are accurate, complete and authentic.
3.3 Except as specifically addressed in opinion paragraphs 4.3 and 4.4 as to the Corporation, each of the parties has duly authorized, executed and delivered each Commission Document to which it is a party. All individuals executing and delivering the Commission Documents on behalf of the parties have the legal capacity to do so. The Commission Documents constitute the legal, valid and binding obligations of all of the parties thereto, enforceable against them in accordance with their respective terms under the laws of all applicable jurisdictions.
Stone Pigman Walther Wittmann, L.L.C.
Page 3
August 20, 2021
3.4 We have assumed that the issuance of, and the terms of, the guarantees to be issued by the Corporation from time to time as contemplated by the Registration Statement with respect to any series of Debt Securities (the "Guarantees") will be authorized and approved by the Board of Directors of the Corporation, or a duly authorized committee thereof, in accordance with Applicable Law and the Corporate Documents (such approval referred to herein as the "Corporate Proceedings").
3.5 We have further assumed that at no future time would any subsequent change of fact or law affect adversely our ability to render at such time the opinions given in this letter.
| 4. | Opinions |
4.1 Based on the foregoing and such investigations as we have deemed necessary, and subject to the qualifications and exceptions contained in this letter, we are of the following opinions.
4.2 Based solely on our review of the Corporate Documents and Applicable Law, the Corporation is a corporation duly incorporated under Applicable Law, is validly existing and is in good standing with the Louisiana Secretary of State.
4.3 Based solely on our review of the Corporate Documents and Applicable Law, the Corporation possesses the corporate power and authority to execute and deliver one or more supplemental indentures to the Indenture as contemplated by the Registration Statement, to perform its obligations thereunder and to issue the Guarantees pursuant to the terms thereof.
4.4 Upon completion of the Corporate Proceedings with respect to the issuance of a Guarantee, the issuance of such Guarantee by the Corporation will be duly authorized by all requisite corporate action on the part of the Corporation.
| 5. | Qualifications |
5.1 In addition to the qualifications and assumptions set forth elsewhere in this letter, the opinions set forth in this letter are subject to the following qualifications.
5.2 We express no opinion as to the enforceability of the Guarantees, which we understand are not to be governed by Applicable Law.
5.3 This opinion is limited to Applicable Law. We express no opinion with regard to any matter that may be governed by the laws of any other jurisdiction.
Stone Pigman Walther Wittmann, L.L.C.
Page 4
August 20, 2021
5.4 The opinions expressed herein are given as of the date hereof. We assume no obligation to update or supplement such opinions to reflect any fact or circumstance that may hereafter come to our attention or any change in law that may hereafter become effective.
5.5 We hereby consent to the filing of this opinion as Exhibit 5.3 to the Registration Statement. We also hereby consent to the reference to our firm under the heading "Legal Matters" in the prospectus constituting part of the Registration Statement. In giving this consent, we do not admit that we are "experts" under the Act or the rules and regulations of the Commission thereunder with respect to any part of the Registration Statement, including this exhibit.
5.6 We did not participate in the preparation of the Registration Statement. We have conducted no independent investigation with respect to, nor do we express any opinion with respect to, the accuracy, completeness, compliance with any securities or other laws, or fairness of any part of the Registration Statement.
| Yours very truly, | |
| /s/ Stone Pigman Walther Wittmann, L.L.C. |
EXHIBIT A
Louisiana Defined Terms
"Applicable Law" means the present laws, rules and regulations of the State applicable to subsidiary guarantees of the kind contemplated by the Registration Statement, and the present judicial and administrative interpretations thereof as are generally available (i.e., in terms of access and distribution following publication or other release) to lawyers practicing in the State and in a format that makes legal research reasonably feasible. The term does not include (i) state "Blue Sky" laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments; (ii) pension and employee benefit laws and regulations; (iii) state antitrust and unfair competition laws and regulations; (iv) state laws and regulations concerning filing and notice requirements, other than requirements applicable to charter related documents such as a certificate of merger and other than the filing of mortgages and financing statements to perfect the mortgage and security interests granted thereby; (v) Local Law; (vi) fiduciary duty laws; (vii) fraudulent transfer, fraudulent conveyance, and unlawful distribution laws and bankruptcy and similar laws; (viii) state environmental laws and regulations; (ix) state land use and subdivision laws and regulations; (x) state tax laws and regulations; (xi) state trademark, and other state intellectual property laws and regulations; (xii) state racketeering laws and regulations; (xiii) state health and safety laws and regulations; (xiv) state labor laws and regulations; (xv) state laws, regulations and policies concerning (A) national, state and local emergency, (B) possible judicial deference to acts of sovereign states and (C) criminal and civil forfeiture laws; and (xvi) other state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes).
"Local Law" means the laws and ordinances, administrative decisions and rules and regulations of parishes, towns, municipalities and special political subdivisions (whether created or enabled through legislative action at the federal, state or regional level, such as water agencies and joint power districts) and judicial decisions to the extent that they deal with any of the foregoing.
Exhibit 8.1
 |
 |
 |
August 20, 2021
Service Properties Trust
Two Newton Place
255 Washington Street, Suite 300
Newton, Massachusetts 02458
Ladies and Gentlemen:
The following opinion is furnished to Service Properties Trust, a Maryland real estate investment trust (the “Company”), to be filed with the Securities and Exchange Commission (the “SEC”) as Exhibit 8.1 to the Company’s Registration Statement on Form S-3 filed on the date hereof (including the prospectus forming a part thereof, the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”).
We have acted as counsel for the Company in connection with the preparation of the Registration Statement. We have reviewed originals or copies of such corporate records, such certificates and statements of officers of the Company and of public officials, and such other documents as we have considered relevant and necessary in order to furnish the opinion hereinafter set forth. In doing so, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, and the authenticity of the originals of such documents. Specifically, and without limiting the generality of the foregoing, we have reviewed: (i) the Company’s amended and restated declaration of trust, as amended and supplemented, and its amended and restated bylaws, as amended; (ii) the Registration Statement; (iii) the Company’s Annual Report on Form 10-K for its fiscal year ended December 31, 2020 (the “Form 10-K”, which is incorporated by reference into the Registration Statement); and (iv) the Company’s Quarterly Reports on Form 10-Q for its quarterly periods ended March 31, 2021 and June 30, 2021 (the “Forms 10-Q”, which are incorporated by reference into the Registration Statement, and together with the Form 10-K, the “Periodic Filings”). For purposes of the opinion set forth below, we have assumed that any documents (other than documents which have been executed, delivered, adopted, or filed, as applicable, by the Company prior to the date hereof) that have been provided to us in draft form will be executed, delivered, adopted, and filed, as applicable, without material modification.
The opinion set forth below is based upon the Internal Revenue Code of 1986, as amended, the Treasury regulations issued thereunder, published administrative interpretations thereof, and judicial decisions with respect thereto, all as of the date hereof (collectively, “Tax Laws”), and upon the Employee Retirement Income Security Act of 1974, as amended, the Department of Labor regulations issued thereunder, published administrative interpretations thereof, and judicial decisions with respect thereto, all as of the date hereof (collectively, “ERISA Laws”). No assurance can be given that Tax Laws or ERISA Laws will not change. In the discussions with respect to Tax Laws matters and ERISA Laws matters in the sections of Item 1 of the Form 10-K captioned “Material United States Federal Income Tax Considerations” and “ERISA Plans, Keogh Plans and Individual Retirement Accounts”, certain assumptions have been made therein and certain conditions and qualifications have been expressed therein, all of which assumptions, conditions, and qualifications are incorporated herein by reference. With respect to all questions of fact on which our opinion is based, we have assumed the initial and continuing truth, accuracy, and completeness of: (i) the information set forth in the Registration Statement or in the Periodic Filings, or in any exhibits thereto or any documents incorporated therein by reference; and (ii) representations made to us by officers of the Company or contained in the Registration Statement or in the Periodic Filings, or in any exhibits thereto or any documents incorporated therein by reference, in each such instance without regard to qualifications such as “to the best knowledge of” or “in the belief of”. We have not independently verified such information.
Service Properties Trust
August 20, 2021
Page 2
We have relied upon, but not independently verified, the foregoing assumptions. If any of the foregoing assumptions are inaccurate or incomplete for any reason, or if the transactions described in the Registration Statement or in the Periodic Filings, or in any exhibits thereto or any documents incorporated therein by reference, have been or are consummated in a manner that is inconsistent with the manner contemplated therein, our opinion as expressed below may be adversely affected and may not be relied upon.
Based upon and subject to the foregoing: (i) we are of the opinion that the discussions with respect to Tax Laws matters and ERISA Laws matters in the sections of Item 1 of the Form 10-K captioned “Material United States Federal Income Tax Considerations” and “ERISA Plans, Keogh Plans and Individual Retirement Accounts” in all material respects are, subject to the limitations set forth therein, the material Tax Laws considerations and the material ERISA Laws considerations relevant to holders of the securities of the Company discussed therein (the “Securities”); and (ii) we hereby confirm that the opinions of counsel referred to in said sections represent our opinions on the subject matters thereof.
Our opinion above is limited to the matters specifically covered hereby, and we have not been asked to address, nor have we addressed, any other matters or any other transactions. Further, we disclaim any undertaking to advise you of any subsequent changes of the matters stated, represented, or assumed herein or any subsequent changes in Tax Laws or ERISA Laws.
This opinion is rendered to you in connection with the filing of the Registration Statement. Purchasers and holders of the Securities are urged to consult their own tax advisors or counsel, particularly with respect to their particular tax consequences of acquiring, holding, and disposing of the Securities, which may vary for investors in different tax situations. We hereby consent to the filing of a copy of this opinion as an exhibit to the Registration Statement, and to the references to our firm in the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the Act or under the rules and regulations of the SEC promulgated thereunder.
| Very truly yours, | |
| /s/ Sullivan & Worcester LLP | |
| SULLIVAN & WORCESTER LLP |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in this Registration Statement on Form S-3 of our reports dated March 1, 2021 relating to the financial statements of Service Properties Trust (the “Company”) and the effectiveness of the Company’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of the Company for the year ended December 31, 2020. We also consent to the reference to us under the heading "Experts" in such Registration Statement.
/s/ Deloitte & Touche LLP
Boston, Massachusetts
August 20, 2021
Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related Prospectus of Service Properties Trust for the registration of debt securities and related guarantees, common shares of beneficial interest, preferred shares of beneficial interest, depositary shares, and warrants and to the incorporation by reference therein of our report dated February 28, 2020, with respect to the consolidated financial statements of Service Properties Trust included in its Annual Report (Form 10-K) for the year ended December 31, 2020, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Boston, Massachusetts
August 20, 2021
Exhibit 25.1
securities and exchange commission
Washington, D.C. 20549
FORM T-1
Statement of Eligibility Under
The Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
¨ Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
U.S. BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
|
800 Nicollet Mall Minneapolis, Minnesota |
55402 |
| (Address of principal executive offices) | (Zip Code) |
David W. Doucette
U.S. Bank National Association
One Federal Street, 10th Floor
Boston, MA 02110
(617) 603-6534
(Name, address and telephone number of agent for service)
SERVICE PROPERTIES TRUST
SUBSIDIARY GUARANTOR REGISTRANTS (SEE BELOW)
(Exact name of obligor as specified in its charter)
| Maryland | 04-3262075 |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
|
Two Newton Place 255 Washington Street, Suite 300 Newton, Massachusetts |
02458-1634 |
| (Address of principal executive offices) | (Zip Code) |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture securities)
TABLE OF CO-REGISTRANTS
| Exact Name of Registrant as Specified in its Charter | State or Jurisdiction of Incorporation or Organization | Entity Type | IRS Employer Identification Number | |||
| Banner NewCo LLC | Delaware | Limited liability company | 84-3069989 | |||
| Cambridge TRS, Inc | Maryland | Corporation | 45-4167445 | |||
| Harbor Court Associates, LLC | Maryland | Limited liability company | 56-2550257 | |||
| Highway Ventures Borrower LLC | Delaware | Limited liability company | 84-3373977 | |||
| Highway Ventures LLC | Delaware | Limited liability company | 84-3373884 | |||
| Highway Ventures Properties LLC | Maryland | Limited liability company | 26-0240108 | |||
| Highway Ventures Properties Trust | Maryland | Real estate investment trust | 26-0239999 | |||
| HPT Cambridge LLC | Massachusetts | Limited liability company | 04-6148511 | |||
| HPT Clift TRS LLC | Maryland | Limited liability company | 82-4109793 | |||
| HPT CW MA Realty LLC | Maryland | Limited liability company | 85-1552858 | |||
| HPT CW MA Realty Trust | Massachusetts | Nominee Trust | 46-2440496 | |||
| HPT CY TRS, Inc | Maryland | Corporation | 46-1213113 | |||
| HPT Geary ABC Holdings LLC | Maryland | Limited liability company | 46-1920850 | |||
| HPT Geary Properties Trust | Maryland | Real estate investment trust | 46-2080511 | |||
| HPT IHG Chicago Property LLC | Maryland | Limited liability company | 84-2997973 | |||
| HPT IHG GA Properties LLC | Maryland | Limited liability company | 20-2870357 | |||
| HPT IHG-2 Properties Trust | Maryland | Real estate investment trust | 20-1997811 | |||
| HPT IHG-3 Properties LLC | Maryland | Limited liability company | 20-3947942 | |||
| HPT SN Holding, Inc | New York | Corporation | 13-5648107 | |||
| HPT State Street TRS LLC | Maryland | Limited liability company | 84-2998086 | |||
| HPT Suite Properties Trust | Maryland | Real estate investment trust | 04-3397210 | |||
| HPT TA Properties LLC | Maryland | Limited liability company | 20-8260669 | |||
| HPT TA Properties Trust | Maryland | Real estate investment trust | 20-8260357 | |||
| HPT TRS IHG-2, Inc | Maryland | Corporation | 20-2131948 | |||
| HPT TRS Inc | Maryland | Corporation | 04-3548096 | |||
| HPT TRS MRP, Inc | Maryland | Corporation | 27-4654560 | |||
| HPT TRS SPES II, Inc | Maryland | Corporation | 43-2012365 | |||
| HPT TRS WYN, Inc | Maryland | Corporation | 46-0781608 | |||
| HPT Wacker Drive TRS LLC | Maryland | Limited liability company | 84-2998217 | |||
| HPTCY Properties Trust | Maryland | Real estate investment trust | 04-3308179 | |||
| HPTMI Hawaii, Inc | Delaware | Corporation | 04-3563876 | |||
| HPTMI Properties Trust | Maryland | Real estate investment trust | 04-3360772 | |||
| HPTWN Properties Trust | Maryland | Real estate investment trust | 04-3308198 | |||
| Royal Sonesta, Inc | Louisiana | Corporation | 72-0803191 | |||
| SVC Gatehall Drive TRS LLC | Maryland | Limited liability company | 86-1396045 | |||
| SVC Holdings LLC | Maryland | Limited liability company | 84-4879602 | |||
| SVC Jersey City TRS LLC | Maryland | Limited liability company | 85-3494714 | |||
| SVC Morris Plains TRS LLC | Maryland | Limited liability company | 85-3494969 | |||
| SVC Nanuet TRS LLC | Maryland | Limited liability company | 85-3495195 | |||
| SVC NJ TRS LLC | Maryland | Limited liability company | 85-2484541 | |||
| SVC Randolph Street TRS LLC | Maryland | Limited liability company | 85-3500521 | |||
| SVC Redondo Beach TRS LLC | Maryland | Limited liability company | 85-3506957 | |||
| SVCN 1 LLC | Delaware | Limited liability company | 20-1262089 | |||
| SVCN 2 LLC | Delaware | Limited liability company | 20-2928350 | |||
| SVCN 3 LLC | Delaware | Limited liability company | 20-3118006 | |||
| SVCN 4 LLC | Delaware | Limited liability company | 84-3069763 | |||
| SVCN 5 LLC | Delaware | Limited liability company | 84-3069896 |
2
FORM T-1
Item 1. GENERAL INFORMATION. Furnish the following information as to the Trustee.
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
Item 2. AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation.
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
Item 16. LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification.
| 1. | A copy of the Articles of Association of the Trustee.* |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| 4. | A copy of the existing bylaws of the Trustee.** |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of March 31, 2021 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.
** Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014.
3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Boston, Commonwealth of Massachusetts on the 20th of August, 2021.
| By: | /s/ David W. Doucette | |
| David W. Doucette | ||
| Vice President |
4
Exhibit 2
5
Exhibit 3
6
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: August 20, 2021
| By: | /s/ David W. Doucette | |
| David W. Doucette | ||
| Vice President |
7
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 6/30/2021
($000’s)
| 6/30/2021 | ||||
| Assets | ||||
| Cash and Balances Due From Depository Institutions | $ | 44,435,957 | ||
| Securities | 158,894,854 | |||
| Federal Funds | 2,376 | |||
| Loans & Lease Financing Receivables | 296,741,901 | |||
| Fixed Assets | 6,294,698 | |||
| Intangible Assets | 13,278,545 | |||
| Other Assets | 28,204,350 | |||
| Total Assets | $ | 547,852,681 | ||
| Liabilities | ||||
| Deposits | $ | 442,902,823 | ||
| Fed Funds | 1,412,092 | |||
| Treasury Demand Notes | 0 | |||
| Trading Liabilities | 1,119,485 | |||
| Other Borrowed Money | 31,883,676 | |||
| Acceptances | 0 | |||
| Subordinated Notes and Debentures | 3,600,000 | |||
| Other Liabilities | 14,222,155 | |||
| Total Liabilities | $ | 495,140,231 | ||
| Equity | ||||
| Common and Preferred Stock | 18,200 | |||
| Surplus | 14,266,915 | |||
| Undivided Profits | 37,622,248 | |||
| Minority Interest in Subsidiaries | 805,087 | |||
| Total Equity Capital | $ | 52,712,450 | ||
| Total Liabilities and Equity Capital | $ | 547,852,681 | ||
8
Exhibit 25.2
securities and exchange commission
Washington, D.C. 20549
FORM T-1
Statement of Eligibility Under
The Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
¨ Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
U.S. BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
|
800 Nicollet Mall Minneapolis, Minnesota |
55402 |
| (Address of principal executive offices) | (Zip Code) |
David W. Doucette
U.S. Bank National Association
One Federal Street, 10th Floor
Boston, MA 02110
(617) 603-6534
(Name, address and telephone number of agent for service)
SERVICE PROPERTIES TRUST
SUBSIDIARY GUARANTOR REGISTRANTS (SEE BELOW)
(Exact name of obligor as specified in its charter)
| Maryland | 04-3262075 |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
|
Two Newton Place 255 Washington Street, Suite 300 Newton, Massachusetts |
02458-1634 |
| (Address of principal executive offices) | (Zip Code) |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture securities)
TABLE OF CO-REGISTRANTS
| Exact Name of Registrant as Specified in its Charter | State or Jurisdiction of Incorporation or Organization | Entity Type | IRS Employer Identification Number | |||
| Banner NewCo LLC | Delaware | Limited liability company | 84-3069989 | |||
| Cambridge TRS, Inc | Maryland | Corporation | 45-4167445 | |||
| Harbor Court Associates, LLC | Maryland | Limited liability company | 56-2550257 | |||
| Highway Ventures Borrower LLC | Delaware | Limited liability company | 84-3373977 | |||
| Highway Ventures LLC | Delaware | Limited liability company | 84-3373884 | |||
| Highway Ventures Properties LLC | Maryland | Limited liability company | 26-0240108 | |||
| Highway Ventures Properties Trust | Maryland | Real estate investment trust | 26-0239999 | |||
| HPT Cambridge LLC | Massachusetts | Limited liability company | 04-6148511 | |||
| HPT Clift TRS LLC | Maryland | Limited liability company | 82-4109793 | |||
| HPT CW MA Realty LLC | Maryland | Limited liability company | 85-1552858 | |||
| HPT CW MA Realty Trust | Massachusetts | Nominee Trust | 46-2440496 | |||
| HPT CY TRS, Inc | Maryland | Corporation | 46-1213113 | |||
| HPT Geary ABC Holdings LLC | Maryland | Limited liability company | 46-1920850 | |||
| HPT Geary Properties Trust | Maryland | Real estate investment trust | 46-2080511 | |||
| HPT IHG Chicago Property LLC | Maryland | Limited liability company | 84-2997973 | |||
| HPT IHG GA Properties LLC | Maryland | Limited liability company | 20-2870357 | |||
| HPT IHG-2 Properties Trust | Maryland | Real estate investment trust | 20-1997811 | |||
| HPT IHG-3 Properties LLC | Maryland | Limited liability company | 20-3947942 | |||
| HPT SN Holding, Inc | New York | Corporation | 13-5648107 | |||
| HPT State Street TRS LLC | Maryland | Limited liability company | 84-2998086 | |||
| HPT Suite Properties Trust | Maryland | Real estate investment trust | 04-3397210 | |||
| HPT TA Properties LLC | Maryland | Limited liability company | 20-8260669 | |||
| HPT TA Properties Trust | Maryland | Real estate investment trust | 20-8260357 | |||
| HPT TRS IHG-2, Inc | Maryland | Corporation | 20-2131948 | |||
| HPT TRS Inc | Maryland | Corporation | 04-3548096 | |||
| HPT TRS MRP, Inc | Maryland | Corporation | 27-4654560 | |||
| HPT TRS SPES II, Inc | Maryland | Corporation | 43-2012365 | |||
| HPT TRS WYN, Inc | Maryland | Corporation | 46-0781608 | |||
| HPT Wacker Drive TRS LLC | Maryland | Limited liability company | 84-2998217 | |||
| HPTCY Properties Trust | Maryland | Real estate investment trust | 04-3308179 | |||
| HPTMI Hawaii, Inc | Delaware | Corporation | 04-3563876 | |||
| HPTMI Properties Trust | Maryland | Real estate investment trust | 04-3360772 | |||
| HPTWN Properties Trust | Maryland | Real estate investment trust | 04-3308198 | |||
| Royal Sonesta, Inc | Louisiana | Corporation | 72-0803191 | |||
| SVC Gatehall Drive TRS LLC | Maryland | Limited liability company | 86-1396045 | |||
| SVC Holdings LLC | Maryland | Limited liability company | 84-4879602 | |||
| SVC Jersey City TRS LLC | Maryland | Limited liability company | 85-3494714 | |||
| SVC Morris Plains TRS LLC | Maryland | Limited liability company | 85-3494969 | |||
| SVC Nanuet TRS LLC | Maryland | Limited liability company | 85-3495195 | |||
| SVC NJ TRS LLC | Maryland | Limited liability company | 85-2484541 | |||
| SVC Randolph Street TRS LLC | Maryland | Limited liability company | 85-3500521 | |||
| SVC Redondo Beach TRS LLC | Maryland | Limited liability company | 85-3506957 | |||
| SVCN 1 LLC | Delaware | Limited liability company | 20-1262089 | |||
| SVCN 2 LLC | Delaware | Limited liability company | 20-2928350 | |||
| SVCN 3 LLC | Delaware | Limited liability company | 20-3118006 | |||
| SVCN 4 LLC | Delaware | Limited liability company | 84-3069763 | |||
| SVCN 5 LLC | Delaware | Limited liability company | 84-3069896 |
2
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee.* |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| 4. | A copy of the existing bylaws of the Trustee.** |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of March 31, 2021 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.
** Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014.
3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Boston, Commonwealth of Massachusetts on the 20th of August, 2021.
| By: | /s/ David W. Doucette | |
| David W. Doucette | ||
| Vice President |
4
Exhibit 2
5
Exhibit 3
6
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: August 20, 2021
| By: | /s/ David W. Doucette | |
| David W. Doucette | ||
| Vice President |
7
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 6/30/2021
($000’s)
| 6/30/2021 | ||||
| Assets | ||||
| Cash and Balances Due From Depository Institutions | $ | 44,435,957 | ||
| Securities | 158,894,854 | |||
| Federal Funds | 2,376 | |||
| Loans & Lease Financing Receivables | 296,741,901 | |||
| Fixed Assets | 6,294,698 | |||
| Intangible Assets | 13,278,545 | |||
| Other Assets | 28,204,350 | |||
| Total Assets | $ | 547,852,681 | ||
| Liabilities | ||||
| Deposits | $ | 442,902,823 | ||
| Fed Funds | 1,412,092 | |||
| Treasury Demand Notes | 0 | |||
| Trading Liabilities | 1,119,485 | |||
| Other Borrowed Money | 31,883,676 | |||
| Acceptances | 0 | |||
| Subordinated Notes and Debentures | 3,600,000 | |||
| Other Liabilities | 14,222,155 | |||
| Total Liabilities | $ | 495,140,231 | ||
| Equity | ||||
| Common and Preferred Stock | 18,200 | |||
| Surplus | 14,266,915 | |||
| Undivided Profits | 37,622,248 | |||
| Minority Interest in Subsidiaries | 805,087 | |||
| Total Equity Capital | $ | 52,712,450 | ||
| Total Liabilities and Equity Capital | $ | 547,852,681 | ||
8
Exhibit 25.3
securities and exchange commission
Washington, D.C. 20549
FORM T-1
Statement of Eligibility Under
The Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
¨ Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
U.S. BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
|
800 Nicollet Mall Minneapolis, Minnesota |
55402 |
| (Address of principal executive offices) | (Zip Code) |
David W. Doucette
U.S. Bank National Association
One Federal Street, 10th Floor
Boston, MA 02110
(617) 603-6534
(Name, address and telephone number of agent for service)
SERVICE PROPERTIES TRUST
SUBSIDIARY GUARANTOR REGISTRANTS (SEE BELOW)
(Exact name of obligor as specified in its charter)
| Maryland | 04-3262075 |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
|
Two Newton Place 255 Washington Street, Suite 300 Newton, Massachusetts |
02458-1634 |
| (Address of principal executive offices) | (Zip Code) |
Senior Subordinated Debt Securities
and Guarantees of Senior Subordinated Debt Securities
(Title of the indenture securities)
TABLE OF CO-REGISTRANTS
| Exact Name of Registrant as Specified in its Charter | State or Jurisdiction of Incorporation or Organization | Entity Type | IRS Employer Identification Number | |||
| Banner NewCo LLC | Delaware | Limited liability company | 84-3069989 | |||
| Cambridge TRS, Inc | Maryland | Corporation | 45-4167445 | |||
| Harbor Court Associates, LLC | Maryland | Limited liability company | 56-2550257 | |||
| Highway Ventures Borrower LLC | Delaware | Limited liability company | 84-3373977 | |||
| Highway Ventures LLC | Delaware | Limited liability company | 84-3373884 | |||
| Highway Ventures Properties LLC | Maryland | Limited liability company | 26-0240108 | |||
| Highway Ventures Properties Trust | Maryland | Real estate investment trust | 26-0239999 | |||
| HPT Cambridge LLC | Massachusetts | Limited liability company | 04-6148511 | |||
| HPT Clift TRS LLC | Maryland | Limited liability company | 82-4109793 | |||
| HPT CW MA Realty LLC | Maryland | Limited liability company | 85-1552858 | |||
| HPT CW MA Realty Trust | Massachusetts | Nominee Trust | 46-2440496 | |||
| HPT CY TRS, Inc | Maryland | Corporation | 46-1213113 | |||
| HPT Geary ABC Holdings LLC | Maryland | Limited liability company | 46-1920850 | |||
| HPT Geary Properties Trust | Maryland | Real estate investment trust | 46-2080511 | |||
| HPT IHG Chicago Property LLC | Maryland | Limited liability company | 84-2997973 | |||
| HPT IHG GA Properties LLC | Maryland | Limited liability company | 20-2870357 | |||
| HPT IHG-2 Properties Trust | Maryland | Real estate investment trust | 20-1997811 | |||
| HPT IHG-3 Properties LLC | Maryland | Limited liability company | 20-3947942 | |||
| HPT SN Holding, Inc | New York | Corporation | 13-5648107 | |||
| HPT State Street TRS LLC | Maryland | Limited liability company | 84-2998086 | |||
| HPT Suite Properties Trust | Maryland | Real estate investment trust | 04-3397210 | |||
| HPT TA Properties LLC | Maryland | Limited liability company | 20-8260669 | |||
| HPT TA Properties Trust | Maryland | Real estate investment trust | 20-8260357 | |||
| HPT TRS IHG-2, Inc | Maryland | Corporation | 20-2131948 | |||
| HPT TRS Inc | Maryland | Corporation | 04-3548096 | |||
| HPT TRS MRP, Inc | Maryland | Corporation | 27-4654560 | |||
| HPT TRS SPES II, Inc | Maryland | Corporation | 43-2012365 | |||
| HPT TRS WYN, Inc | Maryland | Corporation | 46-0781608 | |||
| HPT Wacker Drive TRS LLC | Maryland | Limited liability company | 84-2998217 | |||
| HPTCY Properties Trust | Maryland | Real estate investment trust | 04-3308179 | |||
| HPTMI Hawaii, Inc | Delaware | Corporation | 04-3563876 | |||
| HPTMI Properties Trust | Maryland | Real estate investment trust | 04-3360772 | |||
| HPTWN Properties Trust | Maryland | Real estate investment trust | 04-3308198 | |||
| Royal Sonesta, Inc | Louisiana | Corporation | 72-0803191 | |||
| SVC Gatehall Drive TRS LLC | Maryland | Limited liability company | 86-1396045 | |||
| SVC Holdings LLC | Maryland | Limited liability company | 84-4879602 | |||
| SVC Jersey City TRS LLC | Maryland | Limited liability company | 85-3494714 | |||
| SVC Morris Plains TRS LLC | Maryland | Limited liability company | 85-3494969 | |||
| SVC Nanuet TRS LLC | Maryland | Limited liability company | 85-3495195 | |||
| SVC NJ TRS LLC | Maryland | Limited liability company | 85-2484541 | |||
| SVC Randolph Street TRS LLC | Maryland | Limited liability company | 85-3500521 | |||
| SVC Redondo Beach TRS LLC | Maryland | Limited liability company | 85-3506957 | |||
| SVCN 1 LLC | Delaware | Limited liability company | 20-1262089 | |||
| SVCN 2 LLC | Delaware | Limited liability company | 20-2928350 | |||
| SVCN 3 LLC | Delaware | Limited liability company | 20-3118006 | |||
| SVCN 4 LLC | Delaware | Limited liability company | 84-3069763 | |||
| SVCN 5 LLC | Delaware | Limited liability company | 84-3069896 |
2
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee.* |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| 4. | A copy of the existing bylaws of the Trustee.** |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of March 31, 2021 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.
** Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014.
3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Boston, Commonwealth of Massachusetts on the 20th of August, 2021.
| By: | /s/ David W. Doucette | |
| David W. Doucette | ||
| Vice President |
4
Exhibit 2
5
Exhibit 3
6
Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: August 20, 2021
| By: | /s/ David W. Doucette | |
| David W. Doucette | ||
| Vice President |
7
Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 6/30/2021
($000’s)
| 6/30/2021 | ||||
| Assets | ||||
| Cash and Balances Due From Depository Institutions | $ | 44,435,957 | ||
| Securities | 158,894,854 | |||
| Federal Funds | 2,376 | |||
| Loans & Lease Financing Receivables | 296,741,901 | |||
| Fixed Assets | 6,294,698 | |||
| Intangible Assets | 13,278,545 | |||
| Other Assets | 28,204,350 | |||
| Total Assets | $ | 547,852,681 | ||
| Liabilities | ||||
| Deposits | $ | 442,902,823 | ||
| Fed Funds | 1,412,092 | |||
| Treasury Demand Notes | 0 | |||
| Trading Liabilities | 1,119,485 | |||
| Other Borrowed Money | 31,883,676 | |||
| Acceptances | 0 | |||
| Subordinated Notes and Debentures | 3,600,000 | |||
| Other Liabilities | 14,222,155 | |||
| Total Liabilities | $ | 495,140,231 | ||
| Equity | ||||
| Common and Preferred Stock | 18,200 | |||
| Surplus | 14,266,915 | |||
| Undivided Profits | 37,622,248 | |||
| Minority Interest in Subsidiaries | 805,087 | |||
| Total Equity Capital | $ | 52,712,450 | ||
| Total Liabilities and Equity Capital | $ | 547,852,681 | ||
8
Exhibit 25.4
securities and exchange commission
Washington, D.C. 20549
FORM T-1
Statement of Eligibility Under
The Trust Indenture Act of 1939 of a
Corporation Designated to Act as Trustee
¨ Check if an Application to Determine Eligibility of a Trustee Pursuant to Section 305(b)(2)
U.S. BANK NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
31-0841368
I.R.S. Employer Identification No.
|
800 Nicollet Mall Minneapolis, Minnesota |
55402 |
| (Address of principal executive offices) | (Zip Code) |
David W. Doucette
U.S. Bank National Association
One Federal Street, 10th Floor
Boston, MA 02110
(617) 603-6534
(Name, address and telephone number of agent for service)
SERVICE PROPERTIES TRUST
SUBSIDIARY GUARANTOR REGISTRANTS (SEE BELOW)
(Exact name of obligor as specified in its charter)
| Maryland | 04-3262075 |
| (State or other jurisdiction of incorporation or organization) | (I.R.S. Employer Identification No.) |
|
Two Newton Place 255 Washington Street, Suite 300 Newton, Massachusetts |
02458-1634 |
| (Address of principal executive offices) | (Zip Code) |
Junior Subordinated Debt Securities
and Guarantees of Junior Subordinated Debt Securities
(Title of the indenture securities)
TABLE OF CO-REGISTRANTS
| Exact Name of Registrant as Specified in its Charter | State or Jurisdiction of Incorporation or Organization | Entity Type | IRS Employer Identification Number | |||
| Banner NewCo LLC | Delaware | Limited liability company | 84-3069989 | |||
| Cambridge TRS, Inc | Maryland | Corporation | 45-4167445 | |||
| Harbor Court Associates, LLC | Maryland | Limited liability company | 56-2550257 | |||
| Highway Ventures Borrower LLC | Delaware | Limited liability company | 84-3373977 | |||
| Highway Ventures LLC | Delaware | Limited liability company | 84-3373884 | |||
| Highway Ventures Properties LLC | Maryland | Limited liability company | 26-0240108 | |||
| Highway Ventures Properties Trust | Maryland | Real estate investment trust | 26-0239999 | |||
| HPT Cambridge LLC | Massachusetts | Limited liability company | 04-6148511 | |||
| HPT Clift TRS LLC | Maryland | Limited liability company | 82-4109793 | |||
| HPT CW MA Realty LLC | Maryland | Limited liability company | 85-1552858 | |||
| HPT CW MA Realty Trust | Massachusetts | Nominee Trust | 46-2440496 | |||
| HPT CY TRS, Inc | Maryland | Corporation | 46-1213113 | |||
| HPT Geary ABC Holdings LLC | Maryland | Limited liability company | 46-1920850 | |||
| HPT Geary Properties Trust | Maryland | Real estate investment trust | 46-2080511 | |||
| HPT IHG Chicago Property LLC | Maryland | Limited liability company | 84-2997973 | |||
| HPT IHG GA Properties LLC | Maryland | Limited liability company | 20-2870357 | |||
| HPT IHG-2 Properties Trust | Maryland | Real estate investment trust | 20-1997811 | |||
| HPT IHG-3 Properties LLC | Maryland | Limited liability company | 20-3947942 | |||
| HPT SN Holding, Inc | New York | Corporation | 13-5648107 | |||
| HPT State Street TRS LLC | Maryland | Limited liability company | 84-2998086 | |||
| HPT Suite Properties Trust | Maryland | Real estate investment trust | 04-3397210 | |||
| HPT TA Properties LLC | Maryland | Limited liability company | 20-8260669 | |||
| HPT TA Properties Trust | Maryland | Real estate investment trust | 20-8260357 | |||
| HPT TRS IHG-2, Inc | Maryland | Corporation | 20-2131948 | |||
| HPT TRS Inc | Maryland | Corporation | 04-3548096 | |||
| HPT TRS MRP, Inc | Maryland | Corporation | 27-4654560 | |||
| HPT TRS SPES II, Inc | Maryland | Corporation | 43-2012365 | |||
| HPT TRS WYN, Inc | Maryland | Corporation | 46-0781608 | |||
| HPT Wacker Drive TRS LLC | Maryland | Limited liability company | 84-2998217 | |||
| HPTCY Properties Trust | Maryland | Real estate investment trust | 04-3308179 | |||
| HPTMI Hawaii, Inc | Delaware | Corporation | 04-3563876 | |||
| HPTMI Properties Trust | Maryland | Real estate investment trust | 04-3360772 | |||
| HPTWN Properties Trust | Maryland | Real estate investment trust | 04-3308198 | |||
| Royal Sonesta, Inc | Louisiana | Corporation | 72-0803191 | |||
| SVC Gatehall Drive TRS LLC | Maryland | Limited liability company | 86-1396045 | |||
| SVC Holdings LLC | Maryland | Limited liability company | 84-4879602 | |||
| SVC Jersey City TRS LLC | Maryland | Limited liability company | 85-3494714 | |||
| SVC Morris Plains TRS LLC | Maryland | Limited liability company | 85-3494969 | |||
| SVC Nanuet TRS LLC | Maryland | Limited liability company | 85-3495195 | |||
| SVC NJ TRS LLC | Maryland | Limited liability company | 85-2484541 | |||
| SVC Randolph Street TRS LLC | Maryland | Limited liability company | 85-3500521 | |||
| SVC Redondo Beach TRS LLC | Maryland | Limited liability company | 85-3506957 | |||
| SVCN 1 LLC | Delaware | Limited liability company | 20-1262089 | |||
| SVCN 2 LLC | Delaware | Limited liability company | 20-2928350 | |||
| SVCN 3 LLC | Delaware | Limited liability company | 20-3118006 | |||
| SVCN 4 LLC | Delaware | Limited liability company | 84-3069763 | |||
| SVCN 5 LLC | Delaware | Limited liability company | 84-3069896 |
| 2 |
FORM T-1
| Item 1. | GENERAL INFORMATION. Furnish the following information as to the Trustee. |
| a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
Washington, D.C.
| b) | Whether it is authorized to exercise corporate trust powers. |
Yes
| Item 2. | AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the Trustee, describe each such affiliation. |
None
| Items 3-15 | Items 3-15 are not applicable because to the best of the Trustee's knowledge, the obligor is not in default under any Indenture for which the Trustee acts as Trustee. |
| Item 16. | LIST OF EXHIBITS: List below all exhibits filed as a part of this statement of eligibility and qualification. |
| 1. | A copy of the Articles of Association of the Trustee.* |
| 2. | A copy of the certificate of authority of the Trustee to commence business, attached as Exhibit 2. |
| 3. | A copy of the certificate of authority of the Trustee to exercise corporate trust powers, attached as Exhibit 3. |
| 4. | A copy of the existing bylaws of the Trustee.** |
| 5. | A copy of each Indenture referred to in Item 4. Not applicable. |
| 6. | The consent of the Trustee required by Section 321(b) of the Trust Indenture Act of 1939, attached as Exhibit 6. |
| 7. | Report of Condition of the Trustee as of March 31, 2021 published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
* Incorporated by reference to Exhibit 25.1 to Amendment No. 2 to registration statement on S-4, Registration Number 333-128217 filed on November 15, 2005.
** Incorporated by reference to Exhibit 25.1 to registration statement on form S-3ASR, Registration Number 333-199863 filed on November 5, 2014.
| 3 |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the Trustee, U.S. BANK NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Boston, Commonwealth of Massachusetts on the 20th of August, 2021.
| By: | /s/ David W. Doucette | |
| David W. Doucette | ||
| Vice President |
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Exhibit 2
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Exhibit 3
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Exhibit 6
CONSENT
In accordance with Section 321(b) of the Trust Indenture Act of 1939, the undersigned, U.S. BANK NATIONAL ASSOCIATION hereby consents that reports of examination of the undersigned by Federal, State, Territorial or District authorities may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor.
Dated: August 20, 2021
| By: | /s/ David W. Doucette | |
| David W. Doucette | ||
| Vice President |
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Exhibit 7
U.S. Bank National Association
Statement of Financial Condition
As of 6/30/2021
($000’s)
| 6/30/2021 | ||||
| Assets | ||||
| Cash and Balances Due From Depository Institutions | $ | 44,435,957 | ||
| Securities | 158,894,854 | |||
| Federal Funds | 2,376 | |||
| Loans & Lease Financing Receivables | 296,741,901 | |||
| Fixed Assets | 6,294,698 | |||
| Intangible Assets | 13,278,545 | |||
| Other Assets | 28,204,350 | |||
| Total Assets | $ | 547,852,681 | ||
| Liabilities | ||||
| Deposits | $ | 442,902,823 | ||
| Fed Funds | 1,412,092 | |||
| Treasury Demand Notes | 0 | |||
| Trading Liabilities | 1,119,485 | |||
| Other Borrowed Money | 31,883,676 | |||
| Acceptances | 0 | |||
| Subordinated Notes and Debentures | 3,600,000 | |||
| Other Liabilities | 14,222,155 | |||
| Total Liabilities | $ | 495,140,231 | ||
| Equity | ||||
| Common and Preferred Stock | 18,200 | |||
| Surplus | 14,266,915 | |||
| Undivided Profits | 37,622,248 | |||
| Minority Interest in Subsidiaries | 805,087 | |||
| Total Equity Capital | $ | 52,712,450 | ||
| Total Liabilities and Equity Capital | $ | 547,852,681 | ||
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