As filed with the Securities and Exchange Commission on February 10, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Healthpeak Properties, Inc.
(Exact Name of Registrant as Specified in Its Charter)
Healthpeak OP, LLC
(Exact Name of Registrant as Specified in Its Charter)
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Maryland
(Healthpeak Properties, Inc.)
Maryland (Healthpeak OP, LLC)
(State or Other Jurisdiction of
Incorporation or Organization)
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4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
(720) 428-5050
(Address, Including Zip Code, and
Telephone Number, Including
Area Code, of Registrant’s Principal
Executive Offices)
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33-0091377
(Healthpeak Properties, Inc.)
92-2270343 (Healthpeak OP, LLC)
(IRS Employer
Identification Number)
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Jeffrey H. Miller, Esq.
General Counsel
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
(720) 428-5050
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
With copies to:
Lewis W. Kneib, Esq.
Julian Kleindorfer, Esq.
Alexa M. Berlin, Esq.
Latham & Watkins LLP
355 South Grand Avenue, Suite 100
Los Angeles, California 90071-1560
(213) 485-1234
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this 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.
Healthpeak Properties, Inc:
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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
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Emerging Growth Company
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Healthpeak OP, LLC:
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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
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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.
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Healthpeak Properties, Inc. ☐
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Healthpeak OP, LLC ☐
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PROSPECTUS
Healthpeak Properties, Inc.
Common Stock
Preferred Stock
Depositary Shares
Warrants
Debt Securities
Guarantees
Healthpeak OP, LLC
Debt Securities
Guarantees
Healthpeak Properties, Inc. may from time to time offer to sell common stock, preferred stock, depositary shares, warrants or debt securities, which may be fully and unconditionally guaranteed by Healthpeak OP, LLC, in one or more offerings. Healthpeak OP, LLC may from time to time offer to sell debt securities in one or more series, which will be fully and unconditionally guaranteed by Healthpeak Properties, Inc.
This prospectus describes some of the general terms that may apply to these securities. We will provide the specific amounts, prices and terms of these securities in one or more supplements to this prospectus at the time of the offering and such prospectus supplement may include limitations on actual or constructive ownership and restrictions on transfer of the offered securities, in each case as may be appropriate to preserve our status as a real estate investment trust, or REIT, for U.S. federal income tax purposes. The prospectus supplement may also add, update or change information contained in this prospectus. You should read this prospectus and any accompanying prospectus supplement or other offering materials carefully before you make your investment decision.
The applicable prospectus supplement will also contain information, where applicable, about certain U.S. federal income tax consequences relating to, and any listing on a securities exchange of, the offered securities covered by such prospectus supplement.
We may offer and sell these securities through underwriters, brokers, dealers or agents or directly to purchasers, or a combination thereof on a continuous or delayed basis. The securities may also be resold by selling securityholders. The prospectus supplement for each offering will describe in detail the plan of distribution for that offering and will set forth the names of any underwriters, dealers or agents involved in the offering and any applicable fees, commissions or discount arrangements and our net proceeds for such sale.
This prospectus may not be used to sell securities unless accompanied by a prospectus supplement or a free writing prospectus.
Healthpeak Properties, Inc.’s common stock is listed on the New York Stock Exchange, or NYSE, under the trading symbol “PEAK.” On February 9, 2023, the last reported sale price of Healthpeak Properties, Inc.’s common stock on the NYSE was $26.31 per share. Each prospectus supplement will indicate if the securities offered thereby will be listed on any securities exchange.
Investing in our securities involves risks. You should carefully consider the risk factors incorporated herein by reference and described under the heading “Risk Factors” beginning on page 2 of this prospectus and in any accompanying prospectus supplement relating to specific offerings of securities.
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 February 10, 2023.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission, or SEC, using a “shelf” registration process. Under the shelf registration process, we may offer and sell common stock, preferred stock, depositary shares, warrants, debt securities or guarantees, or any combination thereof, from time to time, in one or more offerings.
This prospectus only provides you with a general description of the securities we may offer. Each time we or any selling securityholders sell securities, we or any selling securityholders will provide a supplement to this prospectus that will contain specific information about the terms of that offering, including the specific amounts, prices and terms of the securities offered. The prospectus supplement may also add, update or change information contained in this prospectus. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement or free writing prospectus will supersede this prospectus to the extent it contains information that is different from, or that conflicts with, the information contained in this prospectus. You should carefully read both this prospectus and any accompanying prospectus supplement or other offering materials, together with the additional information described under the heading “Where You Can Find More Information,” in making your investment decision.
You should rely only on the information contained or incorporated by reference in this prospectus, the applicable prospectus supplement, or any free writing prospectus. Neither we, nor any selling securityholders, have authorized anyone to provide you with different information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus, the applicable prospectus supplement, and any free writing prospectus are not an offer to sell or solicitation of an offer to buy these securities in any jurisdiction where the offer, solicitation or sale is not permitted. This document may only be used where it is legal to sell these securities.
This prospectus and any accompanying prospectus supplement or other offering materials do not contain all of the information included in the registration statement as permitted by the rules and regulations of the SEC. For further information, we refer you to the registration statement on Form S-3, including its exhibits. We are subject to the informational requirements of the Securities Exchange Act of 1934, as amended, or the Exchange Act, and, therefore, file reports and other information with the SEC. Statements contained in this prospectus and any accompanying prospectus supplement or other offering materials about the provisions or contents of any agreement or other document are only summaries. If SEC rules require that any agreement or document be filed as an exhibit to the registration statement, you should refer to that agreement or document for its complete contents.
You should not assume that the information contained or incorporated by reference in this prospectus, any prospectus supplement and any applicable free writing prospectus or any other offering materials is accurate as of any date other than the date on the front of each document. Our business, financial condition, results of operations and prospects may have changed since then.
Healthpeak Properties, Inc. is a Maryland corporation organized to qualify as a REIT under the Internal Revenue Code of 1986, as amended, or the Code, and operates its business through its consolidated subsidiary, Healthpeak OP, LLC, a Maryland limited liability company. In this prospectus, unless otherwise indicated or unless the context requires otherwise, references to “Healthpeak,” “our company,” “we,” “us” or “our” mean Healthpeak Properties, Inc., together with its consolidated subsidiaries, including Healthpeak OP, LLC, and including, where context requires, the predecessor entity also known as Healthpeak Properties, Inc., and references to the “operating company” mean Healthpeak OP, LLC.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC under the Exchange Act. The SEC maintains a website, www.sec.gov, that contains reports, proxy and information statements, and other information regarding issuers, such as us, that file electronically with the SEC. In addition, we maintain a website that contains information about us at http://www.healthpeak.com. The information found on, or otherwise accessible through, our website is not incorporated into, and does not form a part of, this prospectus or the applicable prospectus supplement or any other report or document we file with or furnish to the SEC.
The SEC allows us to “incorporate by reference” information we file with the SEC into this prospectus and any accompanying prospectus supplement. This means that we can disclose important information to you by referring you to another document that we have filed separately with the SEC.
The information incorporated by reference is considered to be part of this prospectus and any accompanying prospectus supplement. Information that we file with the SEC after the date of this prospectus and that is incorporated by reference in this prospectus and any accompanying prospectus supplement will update and supersede the information included or incorporated by reference into this prospectus and any accompanying prospectus supplement. We incorporate by reference in this prospectus and any accompanying prospectus supplement the following documents (other than any portions of any such documents deemed to have been furnished and not filed in accordance with the applicable SEC rules):
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any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act until we sell all of the securities offered by this prospectus or the offering is otherwise terminated.
We will provide copies, without charge, of any documents incorporated by reference in this prospectus or any accompanying prospectus supplement, excluding exhibits unless specifically incorporated by reference, to any persons to whom a prospectus is delivered, including any beneficial owner, who requests them in writing or by telephone from:
Legal Department
Healthpeak Properties, Inc.
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
(720) 428-5050
legaldept@healthpeak.com
SUMMARY
The information included below is only a summary and may not contain all the information that is important to you. You should carefully read both this prospectus and any accompanying prospectus supplement, the documents incorporated by reference herein and therein, any applicable free writing prospectus, and any other offering materials, together with the additional information described under the heading “Where You Can Find More Information.”
Healthpeak Properties, Inc.
Healthpeak Properties, Inc., a Standard & Poor’s 500 company, is a Maryland corporation that is organized to qualify as a REIT and that, together with its consolidated entities, invests primarily in real estate serving the healthcare industry in the United States. We acquire, develop, own, lease and manage healthcare real estate. Our diverse portfolio is comprised of investments in the following reportable healthcare segments: (i) life science; (ii) medical office; and (iii) continuing care retirement community.
We generally conduct substantially all of our operations through the operating company, Healthpeak OP, LLC, a consolidated subsidiary of which we are the managing member.
On February 7, 2023, the company formerly known as Healthpeak Properties, Inc., a Maryland corporation (“Old Healthpeak”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with the company that was then known as New Healthpeak, Inc. (“Holdco”), which from its formation until the effective time of the Merger (the “Effective Time”) was a wholly owned subsidiary of Old Healthpeak, and Healthpeak Merger Sub, Inc., a Maryland corporation (“Merger Sub”), which was a wholly owned subsidiary of Holdco. The purpose of the transactions contemplated by the Merger Agreement was for Old Healthpeak to implement a corporate reorganization into a new holding company structure commonly referred to as an Umbrella Partnership Real Estate Investment Trust, or UPREIT (the “Reorganization”).
Effective on February 10, 2023, pursuant to the Merger Agreement, Merger Sub merged with and into Old Healthpeak, with Old Healthpeak continuing as the surviving corporation and a wholly owned subsidiary of New Healthpeak (the “Merger”). As part of the Merger, Old Healthpeak’s name was changed to Healthpeak Properties Interim, Inc., and, effective immediately after the Effective Time, Holdco’s name was changed to Healthpeak Properties, Inc., the entity we refer to herein as our company. The Merger was conducted in accordance with Section 3-106.2 of the Maryland General Corporation Law. Accordingly, the Merger did not require the approval of Old Healthpeak’s stockholders, and the Merger did not give rise to statutory dissenters’ rights.
In connection with the Reorganization and immediately following the Merger, Old Healthpeak converted from a Maryland corporation to a Maryland limited liability company called “Healthpeak OP, LLC” effective February 10, 2023 (the “LLC Conversion”), and Healthpeak became the managing member of the operating company. Following the Merger, the business, management and board of directors of Healthpeak was identical to the business, management and board of directors of Old Healthpeak immediately before the Merger, except that the business of the company is expected to be conducted exclusively through the operating company. The consolidated assets and liabilities of Healthpeak immediately following the Merger were identical to the consolidated assets and liabilities of Old Healthpeak immediately prior to the Merger.
Our principal executive offices are located at 4600 South Syracuse Street, Suite 500, Denver, Colorado 80237, and our telephone number is (720) 428-5050.
RISK FACTORS
Before making an investment decision, you should carefully consider the information under the heading “Risk Factors” incorporated by reference to our most recent Annual Report on Form 10-K, any subsequent Quarterly Reports on Form 10-Q and Current Reports 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 and all other information contained or incorporated by reference into this prospectus, as updated by our subsequent filings under the Exchange Act that are also incorporated by reference into this prospectus, and the risk factors and other information contained in the applicable prospectus supplement and any applicable free writing prospectus before acquiring any securities offered by this prospectus and any applicable prospectus supplement. Each of the risks described in these documents could materially and adversely affect our business, financial condition, results of operations and prospects, and could result in a partial or complete loss of your investment. See “Where You Can Find More Information.”
GUARANTOR DISCLOSURES
Healthpeak Properties, Inc. may guarantee debt securities of the operating company as described in “Description of Debt Securities and Related Guarantees.” Any such guarantees by Healthpeak Properties, Inc. will be full, irrevocable, unconditional and absolute joint and several guarantees to the holders of each series of such outstanding guaranteed debt securities. Healthpeak Properties, Inc. owns all of its assets and conducts all of its operations through the operating company and the operating company will be consolidated into Healthpeak Properties, Inc.’s consolidated financial statements.
Healthpeak Properties, Inc. and the operating company have filed this prospectus with the SEC registering, among other securities, debt securities of the operating company, which will be fully and unconditionally guaranteed by Healthpeak Properties, Inc. Pursuant to Rule 3-10 of Regulation S-X, subsidiary issuers of obligations guaranteed by the parent are not required to provide separate financial statements, provided that the subsidiary obligor is consolidated into the parent company’s consolidated financial statements, the parent guarantee is “full and unconditional” and, subject to the exception set forth below, the alternative disclosure required by Rule 13-01 of Regulation S-X is provided, which includes narrative disclosure and summarized financial information. Accordingly, separate consolidated financial statements of the operating company have not been presented.
As permitted under Rule 13-01(a)(4)(vi) of Regulation S-X, we have excluded the summarized financial information for the operating company because the assets, liabilities and results of operations of the operating company are not materially different than the corresponding amounts in Healthpeak Properties, Inc.’s consolidated financial statements incorporated by reference herein, and management believes such summarized financial information would be repetitive and would not provide incremental value to investors.
USE OF PROCEEDS
We will disclose the intended use of net proceeds from our sales of the securities in the applicable prospectus supplement. We will not receive any proceeds from sales of securities by selling securityholders.
DESCRIPTION OF CAPITAL STOCK
The following description summarizes the material provisions of the common stock and preferred stock Healthpeak Properties, Inc. may offer. This description is not complete and is subject to, and is qualified in its entirety by reference to, our charter and our bylaws and applicable provisions of the Maryland General Corporation Law, or the MGCL. The specific terms of any series of preferred stock will be described in the applicable prospectus supplement. Any series of preferred stock we issue will be governed by our charter and by the articles supplementary related to that series. We will file the articles supplementary with the SEC and incorporate it by reference as an exhibit to our registration statement at or before the time we issue any preferred stock of that series of authorized preferred stock. As used in this “Description of Capital Stock,” references to “Healthpeak,” “our company,” “we,” “us” or “our” refer solely to Healthpeak Properties, Inc. and not to any of its subsidiaries, unless otherwise expressly stated or the context otherwise requires.
Our authorized capital stock consists of 750,000,000 shares of common stock, par value $1.00 per share, and 50,000,000 shares of preferred stock, par value $1.00 per share. The following description does not contain all the information that might be important to you.
Common Stock
As of February 10, 2023, there were 546,782,509 shares of common stock outstanding. All shares of common stock participate equally in dividends payable to holders of common stock, when, as and if authorized by our board and declared by us, and in net assets available for distribution to holders of common stock on liquidation, dissolution, or winding up. Each outstanding share of common stock entitles the holder to one vote on all matters submitted to a vote of our stockholders. Holders of common stock do not have cumulative voting rights in the election of directors.
All issued and outstanding shares of common stock are, and the common stock offered by this prospectus will be upon issuance in exchange for the consideration therefor, validly issued, fully paid and nonassessable. Holders of common stock do not have preference, conversion, exchange or preemptive rights. The common stock is listed on the NYSE (NYSE Symbol: PEAK).
The Transfer Agent and Registrar for our common stock is Equiniti Trust Company (“EQ” or “EQ Shareowner Services”).
Preferred Stock
As of February 10, 2023, we had no shares of preferred stock outstanding. Under our charter, our board is authorized without further stockholder action to establish and issue, from time to time, up to 50,000,000 shares of our preferred stock, in one or more series. Our board may grant the holders of preferred stock of any series preferences, powers and rights — voting or otherwise — senior to those of holders of shares of our common stock. Our board can authorize the issuance of shares of preferred stock with terms and conditions that could have the effect of delaying or preventing a change of control transaction that might involve a premium price for holders of shares of our common stock or otherwise be in their best interest. All shares of preferred stock will, when issued in exchange for the consideration therefor, be fully paid and nonassessable and will have no preemptive rights. The MGCL and our charter require our board to determine the terms and conditions of any series of preferred stock, including:
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the number of shares constituting such series and the distinctive designation thereof;
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the voting rights, if any, of such series;
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the rate of dividends payable on such series, the time or times when dividends will be payable, the preference to, or any relation to, the payment of dividends to any other class or series of stock and whether the dividends will be cumulative or noncumulative;
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whether there shall be a sinking or similar fund for the purchase of shares of such series and, if so, the terms and provisions that shall govern such fund;
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the rights of the holders of shares of such series upon our liquidation, dissolution or winding up;
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the rights, if any, of holders of shares of such series to convert such shares into, or to exchange such shares for, shares of any other class or classes or any other series of the same or of any other class or classes of our stock or any other securities, the price or prices or rate or rates of exchange, with such adjustments as shall be provided, at which such shares shall be convertible or exchangeable, whether such rights of conversion or exchange shall be exercisable at the option of the holder of the shares or upon the happening of a specified event and any other terms or conditions of such conversion or exchange;
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if the shares are redeemable, the prices at which, and the terms and conditions on which, the shares of such series may be redeemed; and
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any other preferences, powers and relative participating, optional or other special rights and qualifications, limitations or restrictions of shares of such series.
The terms and conditions of any particular series of preferred stock will be described in the prospectus supplement relating to that particular series of preferred stock.
Transfer and Ownership Restrictions Relating to Our Common Stock
Our charter contains restrictions on the ownership and transfer of our common stock that are intended to assist us in complying with the requirements to continue to qualify as a REIT.
Subject to limited exceptions, no person or entity may own, or be deemed to own by virtue of the applicable constructive ownership provisions of the Code, more than 9.8% (by number or value of shares, whichever is more restrictive) of the outstanding shares of our common stock. Our board may, but is in no event required to, waive the applicable ownership limit with respect to a particular stockholder if it determines that such ownership will not jeopardize our status as a REIT and our board otherwise decides such action would be in our best interests.
These charter provisions further prohibit:
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any person from actually or constructively owning shares of our stock that would result in our being “closely held” under Section 856(h) of the Code or otherwise cause us to fail to qualify as a real estate investment trust (including but not limited to ownership that would result in us owning, actually or constructively, an interest in a tenant as described in Section 856(d)(2)(B) of the Code if the income derived by us, either directly or indirectly, from such tenant would cause us to fail to satisfy any of the gross income requirements of Section 856(c) of Code); and
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any person from transferring shares of our capital stock if such transfer would result in shares of our stock being beneficially owned by fewer than 100 persons (determined without reference to any rules of attribution).
Any person who acquires or attempts or intends to acquire actual or constructive ownership of shares of our stock that will or may violate any of these restrictions on ownership and transfer is required to give notice immediately to us and provide us with such other information as we may request in order to determine the effect of the transfer on our qualification as a REIT. Under our charter, if any purported transfer of our stock or any other event would otherwise result in any person violating the applicable ownership limit or such other limit as permitted by our board, then any such purported transfer is void and of no force or effect with respect to the purported transferee as to that number of shares of our stock in excess of the ownership limit or such other limit, and the transferee will acquire no right or interest in such excess shares. Any excess shares described above are transferred automatically, by operation of law, to a trust, the beneficiary of which is a qualified charitable organization selected by us. Such automatic transfer will be deemed to be effective as of the close of business on the business day prior to the date of such violative transfer. Within 20 days of receiving notice from us of the transfer of shares to the trust, the trustee of the trust is required to sell the excess shares to a person or entity who could own the shares without violating the applicable ownership limit, or such other limit as permitted by our board, and distribute to the prohibited transferee an amount equal to the lesser of the price paid by the prohibited transferee for the excess shares or the sales proceeds received by the trust for the excess shares. Any proceeds in excess of the amount distributable to the prohibited transferee are distributed to the beneficiary of the trust. Prior to a sale of
any such excess shares by the trust, the trustee is entitled to receive, in trust for the beneficiary, all dividends and other distributions paid by us with respect to such excess shares, and also is entitled to exercise all voting rights with respect to such excess shares.
Subject to Maryland law, effective as of the date that such shares have been transferred to the trust, the trustee will have the authority, at the trustee’s sole discretion:
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to rescind as void any vote cast by a prohibited transferee prior to the discovery by us that the shares have been transferred to the trust; or
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to recast such vote in accordance with the desires of the trustee acting for the benefit of the beneficiary of the trust.
However, if we have already taken irreversible corporate action, then the trustee will not have the authority to rescind and recast such vote. Any dividend or other distribution paid to the prohibited transferee, prior to the discovery by us that such shares had been automatically transferred to a trust as described above, are required to be repaid to the trustee upon demand for distribution to the beneficiary of the trust. In the event that the transfer to the trust as described above is not automatically effective, for any reason, to prevent violation of the ownership limit or such other limit as permitted by our board, then our charter provides that the transfer of the excess shares is void ab initio.
In addition, shares of common stock held in the trust shall be deemed to have been offered for sale to us, or our designee, at a price per share equal to the lesser of:
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the price per share in the transaction that resulted in such transfer to the trust or, in the case of a devise or gift, the market price at the time of such devise or gift; and
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the market price on the date we, or our designee, accepted the offer.
We will have the right to accept the offer until the trustee has sold the shares of stock held in the trust. Upon a sale to us, the interest of the beneficiary in the shares sold will terminate and the trustee will distribute the net proceeds of the sale to the prohibited transferee.
If any purported transfer of shares of common stock would cause us to be beneficially owned by fewer than 100 persons, such transfer will be null and void ab initio in its entirety and the intended transferee will acquire no rights to the stock.
ll certificates representing shares of common stock bear a legend referring to the restrictions described above. The foregoing ownership limitations could delay, defer or prevent a transaction or a change in control of us that might involve a premium price for the common stock or otherwise be in the best interest of our stockholders.
In addition, if our board shall, at any time and in good faith, be of the opinion that direct or indirect ownership of at least 9.9% of the voting shares of capital stock has or may become concentrated in the hands of one beneficial owner, it shall have the power:
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by lot or other means deemed equitable by it to call for the purchase from any stockholder of a number of voting shares sufficient, in the opinion of our board, to maintain or bring the direct or indirect ownership of voting shares of capital stock of the beneficial owner to a level of no more than 9.9% of our outstanding voting shares; and
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to refuse to transfer or issue voting shares of capital stock to any person whose acquisition of such voting shares would, in the opinion of the board, result in the direct or indirect ownership by that person of more than 9.9% of the outstanding voting shares of our capital stock.
If our board fails to grant an exemption from this 9.9% ownership limitation, then the transfer of shares, options, warrants, or other securities convertible into voting shares that would create a beneficial owner of more than 9.9% of the outstanding voting shares shall be deemed void ab initio, and the intended transferee shall be deemed never to have had an interest in the transferred securities. The purchase price for any voting shares of capital stock so redeemed shall be equal to the fair market value of the shares reflected in the closing sales price for the shares, if then listed on a national securities exchange, or the average of the closing sales prices for the shares if then listed on more than one national securities exchange, or if the shares are not then listed on a national securities exchange, the latest bid quotation for the shares if then
traded over-the-counter, on the last business day immediately preceding the day on which we send notices of such acquisitions, or, if no such closing sales prices or quotations are available, then the purchase price shall be equal to the net asset value of such stock as determined by the board in accordance with the provisions of applicable law. From and after the date fixed for purchase by the board, the holder of any shares so called for purchase shall cease to be entitled to distributions, voting rights and other benefits with respect to such shares, except the right to payment of the purchase price for the shares.
Business Combination Provisions
Our charter requires that, except in some circumstances, “business combinations” between us and a beneficial holder of 10% or more of our outstanding voting stock (a “Related Person”) be approved by the affirmative vote of at least 90% of our outstanding voting shares. A “business combination” is defined in our charter as:
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any merger or consolidation with or into a Related Person;
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any sale, lease, exchange, transfer or other disposition, including without limitation a mortgage or any other security device, of all or any “Substantial Part” (as defined below) of our assets, including any voting securities of a subsidiary, to a Related Person;
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any merger or consolidation of a Related Person with or into us;
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any sale, lease, exchange, transfer or other disposition of all or any Substantial Part of the assets of a Related Person to us;
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the issuance of any of our securities, other than by way of pro rata distribution to all stockholders, to a Related Person; and
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any agreement, contract or other arrangement providing for any of the transactions described above.
The term “Substantial Part” means more than 10% of the book value of our total assets as of the end of our most recent fiscal year ending prior to the time the determination is being made.
In addition to the restrictions on business combinations contained in our charter, Maryland law also contains restrictions on business combinations. See “Certain Provisions of Maryland Law and Healthpeak’s Charter and Bylaws — Business Combinations.”
The foregoing provisions may have the effect of discouraging unilateral tender offers or other takeover proposals which stockholders might deem to be in their interests or in which they might receive a substantial premium. Our board’s authority to issue and establish the terms of currently authorized preferred stock, without stockholder approval, may also have the effect of discouraging takeover attempts. See “— Preferred Stock.”
The foregoing provisions could also have the effect of insulating current management against the possibility of removal and could, by possibly reducing temporary fluctuations in market price caused by accumulations of shares of our common stock, deprive stockholders of opportunities to sell at a temporarily higher market price. Our board believes, however, that inclusion of the business combination provisions in our charter may help assure fair treatment of our stockholders and preserve our assets.
Transfer and Ownership Restrictions Relating to Our Preferred Stock
Our charter may contain restrictions on the ownership and transfer of preferred stock that are intended to assist us in complying with the requirements to maintain our qualification as a REIT. Subject to limited exceptions, unless otherwise provided in a prospectus supplement relating to a particular series of the preferred stock, no person or entity may own, or be deemed to own by virtue of the applicable constructive ownership provisions of the Code, more than 9.8% (by number or value of shares, whichever is more restrictive) of the outstanding shares of such series of preferred stock. Our board may, but in no event will be required to, waive the applicable ownership limit with respect to a particular stockholder if it determines that such ownership will not jeopardize our qualification as a REIT and our board otherwise decides such action would be in our best interests. The mechanics for the ownership limits on our preferred stock will be similar to the mechanics related to our common stock, as described in “— Transfer and Ownership Restrictions Relating to Our Common Stock” above, unless otherwise provided in a prospectus supplement relating to a particular series of the preferred stock.
DESCRIPTION OF DEPOSITARY SHARES
General
We may offer fractional shares of preferred stock, rather than full shares of preferred stock. If we do so, we may issue receipts for depositary shares that each represent a fraction of a share of a particular series of preferred stock. The prospectus supplement will indicate that fraction. The shares of preferred stock represented by depositary shares will be deposited under one or more depositary agreements between us and a bank or trust company that meets certain requirements and is selected by us (the “bank depositary”). Each owner of a depositary share will be entitled to all the rights and preferences of the preferred stock represented by the depositary share. The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the offering. As used in this “Description of Depositary Shares,” references to “our company,” “we,” “us” or “our” refer solely to Healthpeak Properties, Inc. and not to any of its subsidiaries, unless otherwise expressly stated or the context otherwise requires.
We have summarized some common provisions of a depositary agreement and the related depositary receipts. The description in the applicable prospectus supplement of any depositary shares we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable depositary agreement and the depositary receipts relating to any particular issue of depositary shares, which will be filed with the SEC if we offer depository shares. For more information on how you can obtain copies of any depositary agreement and the depositary receipts if we offer depositary shares, see “Where You Can Find More Information.” We urge you to read the applicable depositary agreement and the depositary receipts relating to any particular issue of depositary shares and any applicable prospectus supplement in their entirety.
Dividends and Other Distributions
If we pay a cash distribution or dividend on a series of preferred stock represented by depositary shares, the bank depositary will distribute such dividends to the record holders of such depositary shares. If the distributions are in property other than cash, the bank depositary will distribute the property to the record holders of the depositary shares. However, if the bank depositary determines that it is not feasible to make the distribution of property, the bank depositary may, with our approval, sell such property and distribute the net proceeds from such sale to the record holders of the depositary shares.
Redemption of Depositary Shares
If we redeem a series of preferred stock represented by depositary shares, the bank depositary will redeem the depositary shares from the proceeds received by the bank depositary in connection with the redemption. The redemption price per depositary share will equal the applicable fraction of the redemption price per share of the preferred stock. If fewer than all the depositary shares are redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as the bank depositary may determine.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred stock represented by depositary shares are entitled to vote, the bank depositary will mail the notice to the record holders of the depositary shares relating to such preferred stock. Each record holder of these depositary shares on the record date, which will be the same date as the record date for the preferred stock, may instruct the bank depositary as to how to vote the preferred stock represented by such holder’s depositary shares. The bank depositary will endeavor, insofar as practicable, to vote the amount of the preferred stock represented by such depositary shares in accordance with such instructions, and we will take all action that the bank depositary deems necessary in order to enable the bank depositary to do so. The bank depositary will abstain from voting shares of the preferred stock to the extent it does not receive specific instructions from the holders of depositary shares representing such preferred stock.
Amendment and Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the depositary agreement may be amended by agreement between the bank depositary and us. However, any amendment that materially and adversely alters the rights of the holders of depositary shares will not be effective unless such amendment has been approved by the holders of at least a majority of the depositary shares then outstanding. The depositary agreement may be terminated by the bank depositary or us only if (i) all outstanding depositary shares have been redeemed or (ii) there has been a final distribution in respect of the preferred stock in connection with any liquidation, dissolution or winding up of our company and such distribution has been distributed to the holders of depositary receipts.
Charges of Bank Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay charges of the bank depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts will pay other transfer and other taxes and governmental charges and any other charges, including a fee for the withdrawal of shares of preferred stock upon surrender of depositary receipts, as are expressly provided in the depositary agreement.
Withdrawal of Preferred Stock
Except as may be provided otherwise in the applicable prospectus supplement, upon surrender of depositary receipts at the principal office of the bank depositary, subject to the terms of the depositary agreement, the owner of the depositary shares may demand delivery of the number of whole shares of preferred stock and all money and other property, if any, represented by those depositary shares. Partial shares of preferred stock will not be issued. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the number of whole shares of preferred stock to be withdrawn, the bank depositary will deliver to such holder at the same time a new depositary receipt evidencing the excess number of depositary shares. Holders of preferred stock thus withdrawn may not thereafter deposit those shares under the depositary agreement or receive depositary receipts evidencing depositary shares therefor.
Miscellaneous
The bank depositary will forward to holders of depositary receipts all reports and communications from us that are delivered to the bank depositary and that we are required to furnish to the holders of the preferred stock.
Neither the bank depositary nor we will be liable if we are prevented or delayed by law or any circumstance beyond our control in performing our obligations under the depositary agreement. The obligations of the bank depositary and us under the depositary agreement will be limited to performance in good faith of our duties thereunder, and we will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. We may rely upon written advice of counsel or accountants, or upon information provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine.
Resignation and Removal of Bank Depositary
The bank depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the bank depositary. Any such resignation or removal will take effect upon the appointment of a successor bank depositary and its acceptance of such appointment. The successor bank depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company meeting the requirements of the depositary agreement.
DESCRIPTION OF WARRANTS
We may issue warrants for the purchase of debt securities, preferred stock, common stock or other securities. We may issue warrants independently or together with any offered securities. The warrants may be attached to or separate from those offered securities. We will issue the warrants under one or more warrant agreements to be entered into between us and a warrant agent to be named in the applicable prospectus supplement. 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. As used in this “Description of Warrants,” references to “we,” “us” or “our” refer solely to Healthpeak Properties, Inc. and not to any of its subsidiaries, unless otherwise expressly stated or the context otherwise requires.
The prospectus supplement relating to any warrants that we may offer will contain the specific terms of the warrants. These terms may include the following:
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the title of the warrants;
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the price or prices at which the warrants will be issued;
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the designation, amount and terms of the securities for which the warrants are exercisable;
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the designation and terms of the other securities, if any, with which the warrants are to be issued and the number of warrants issued with each other security;
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the aggregate number of warrants;
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any provisions for adjustment of the number or amount of securities receivable upon exercise of the warrants or the exercise price of the warrants;
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the price or prices at which the securities purchasable upon exercise of the warrants may be purchased;
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if applicable, the date on and after which the warrants and the securities purchasable upon exercise of the warrants will be separately transferable;
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a discussion of certain U.S. federal income tax considerations applicable to the exercise of the warrants;
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the date on which the right to exercise the warrants will commence, and the date on which the right will expire;
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the maximum or minimum number of warrants that may be exercised at any time;
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information with respect to book-entry procedures, if any; and
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any other terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
Exercise of Warrants
Each warrant will entitle the holder of the warrant to purchase for cash the amount of debt securities, preferred stock, common stock or other securities at the exercise price stated or determinable in the applicable prospectus supplement for the warrants. Warrants may be exercised at any time up to the close of business on the expiration date shown in the applicable prospectus supplement, unless otherwise specified in such prospectus supplement. After the close of business on the expiration date, unexercised warrants will become void. Warrants may be exercised as described in the applicable prospectus supplement. When the warrant holder makes the payment and properly completes and signs the warrant certificate at the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement, we will, as soon as possible, forward the debt securities, preferred stock, common stock or other securities that the warrant holder has purchased. If the warrant holder exercises the warrant for less than all of the warrants represented by the warrant certificate, we will issue a new warrant certificate for the remaining outstanding warrants.
The description in the applicable prospectus supplement of any warrants we offer will not necessarily be complete and will be qualified in its entirety by reference to the applicable warrant agreement and warrant
certificate, which will be filed with the SEC if we offer warrants. For more information on how you can obtain copies of any warrant certificate or warrant agreement if we offer warrants, see “Where You Can Find More Information.” We urge you to read the applicable warrant certificate, the applicable warrant agreement and any applicable prospectus supplement in their entirety.
DESCRIPTION OF DEBT SECURITIES AND RELATED GUARANTEES
This section describes the general terms and provisions of the debt securities of Healthpeak Properties, Inc. and Healthpeak OP, LLC. When we offer to sell a particular series of debt securities, we will describe the specific terms of the series in a supplement to this prospectus, along with any applicable modifications of or additions to the general terms of the debt securities as described in this prospectus, including the terms of any related guarantees and the terms, if any, on which a series of debt securities may be convertible into or exchangeable for other securities. To the extent the information contained in the prospectus supplement differs from this summary description, you should rely on the information in the prospectus supplement.
Healthpeak Properties, Inc. will issue debt securities under an indenture between Healthpeak Properties, Inc., as issuer, and The Bank of New York Mellon Trust Company, N.A., as trustee, as amended and supplemented from time to time (the “parent indenture”), and Healthpeak OP, LLC will issue debt securities under an amended and restated indenture among Healthpeak OP, LLC, as issuer, Healthpeak Properties, Inc., as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee, as amended and supplemented from time to time (the “operating company indenture” and together with the parent indenture, the “indentures”). Each of the parent indenture and the operating company indenture is subject to and governed by the Trust Indenture Act of 1939, as amended (the “TIA”).
The following summary of the material provisions of the indentures and the debt securities is not complete and is subject to, and is qualified in its entirety by reference to, all of the provisions of the indentures. We urge you to read the applicable indenture, because it, and not the summary below, defines your rights as a holder of debt securities. You can obtain a copy of the applicable indenture by following the directions described in the section entitled “Where You Can Find More Information.” Capitalized terms used in the summary below have the meanings specified in the applicable indenture.
As used in this “Description of Debt Securities and Related Guarantees,” unless the context requires otherwise, references to “the Company,” “we,” “our” and “us” refer either to Healthpeak Properties, Inc. or Healthpeak OP, LLC, as the case may be, as the issuer of the applicable series of debt securities and not to any subsidiaries, and references to “the indenture” refer either to the parent indenture or the operating company indenture, as the case may be.
General
The aggregate principal amount of debt securities that may be issued under the indenture is unlimited. The prospectus supplement and any free writing prospectus we may provide you, as the case may be, relating to any series of debt securities that we may offer will contain the specific terms of the debt securities. These terms may include the following:
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the title and aggregate principal amount of the debt securities and any limit on the aggregate principal amount;
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whether the debt securities will be senior or subordinated;
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whether the debt securities will be secured or unsecured and the terms of any securities agreement or arrangement;
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any applicable subordination provisions for any subordinated debt securities;
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the maturity date(s) or method for determining the same;
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the interest rate(s) or method for determining the same;
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the dates on which interest will accrue or the method for determining dates on which interest will accrue and dates on which interest will be payable and whether interest shall be payable in cash or additional securities;
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whether the debt securities are convertible or exchangeable into other securities and any related terms and conditions;
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redemption or early repayment provisions, including at our option or at the option of the holders;
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authorized denominations;
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if other than the aggregate outstanding principal amount, the principal amount of debt securities payable upon acceleration;
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place(s) where payment of principal and interest may be made, where debt securities may be presented and where notices or demands upon the Company may be made;
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whether such debt securities will be issued in whole or in part in the form of one or more global securities and the date as of which the securities are dated if other than the date of original issuance;
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amount of discount or premium, if any, with which such debt securities will be issued;
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any covenants applicable to the particular debt securities being issued;
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any additions or changes in the defaults and events of default applicable to the particular debt securities being issued;
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the guarantors of each series, if any, and the extent of the guarantees (including provisions relating to seniority, subordination and release of the guarantees), if any;
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the currency, currencies or currency units in which the purchase price for, the principal of and any premium and any interest on, such debt securities will be payable;
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the time period within which, the manner in which and the terms and conditions upon which the holders of the debt securities or the Company can select the payment currency;
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our obligation or right to redeem, purchase or repay debt securities under a sinking fund, amortization or analogous provision;
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any restriction or conditions on the transferability of the debt securities;
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provisions granting special rights to holders of the debt securities upon occurrence of specified events;
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additions or changes relating to compensation or reimbursement of the trustee of the series of debt securities;
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additions or changes to the provisions for the defeasance of the debt securities or to provisions related to satisfaction and discharge of the indenture;
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additions or changes to the provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture and the execution of supplemental indentures for such series; and
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any other terms of the debt securities (which terms shall not be inconsistent with the provisions of the TIA, but may modify, amend, supplement or delete any of the terms of the indenture with respect to such series of debt securities).
We may sell the debt securities, including original issue discount securities, at par or at a substantial discount below their stated principal amount. Unless we inform you otherwise in a prospectus supplement, we may issue additional debt securities of a particular series without the consent of the holders of the debt securities of such series or any other series outstanding at the time of issuance. Any such additional debt securities, together with all other outstanding debt securities of that series, may constitute a single series of securities under the indenture.
We will describe in the applicable prospectus supplement any other special considerations for any debt securities we sell which are denominated in a currency or currency unit other than U.S. dollars. In addition, debt securities may be issued where the amount of principal and/or interest payable is determined by reference to one or more currency exchange rates, commodity prices, equity indices or other factors. Holders of such securities may receive a principal amount or a payment of interest that is greater than or less than the amount of principal or interest otherwise payable on such dates, depending upon the value of the applicable currencies, commodities, equity indices or other factors. We will describe in the applicable prospectus supplement information as to the methods for determining the amount of principal or interest, if any, payable on any date, the currencies, commodities, equity indices or other factors to which the amount payable on such date is linked.
U.S. federal income tax consequences and special considerations, if any, applicable to any such series will be described in the applicable prospectus supplement. Unless we inform you otherwise in the applicable prospectus supplement, the debt securities will not be listed on any securities exchange.
We expect most debt securities to be issued in fully registered form without coupons and in denominations of $2,000 and any integral multiples of $1,000 in excess thereof. Subject to the limitations provided in the indenture and in the prospectus supplement, debt securities that are issued in registered form may be transferred or exchanged at the designated corporate trust office of the trustee, without the payment of any service charge, other than any tax or other governmental charge payable in connection therewith.
Global Securities
Unless we inform you otherwise in the applicable prospectus supplement, the debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary identified in the applicable prospectus supplement or free writing prospectus, as the case may be, relating to such series. Global securities will be issued in registered form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for the individual debt securities, a global security may not be transferred except as a whole by the depositary for such global security to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor of such depositary or a nominee of such successor.
The specific terms of the depositary arrangement with respect to any debt securities of a series and the rights of and limitations upon owners of beneficial interests in a global security will be described in the applicable prospectus supplement or free writing prospectus, as the case may be, applicable to such series. We anticipate that the following provisions will generally apply to depository arrangements.
Upon the issuance of a global security, the depositary will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal amounts of the debt securities represented by such global security beneficially owned by such participants. Ownership of beneficial interests in the global securities will be shown on, and the transfer of such ownership interests will be effected only through, records maintained by the depositary (with respect to interests of participants) and records maintained by the depositary’s direct and indirect participants (with respect to the interests of beneficial owners). The laws of some states may require that certain purchasers of securities take physical delivery of such securities in definitive form. Such laws may limit or impair the ability to own, transfer or pledge beneficial interests in the global securities.
So long as the depositary or its nominee is the registered owner of a global security, the depositary or its nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by such global security for all purposes under the indenture. Except as set forth below, owners of beneficial interests in a global security will not be entitled to have the debt securities represented by such global security registered in their names, will not receive or be entitled to receive physical delivery of such debt securities in certificated form and will not be considered the registered owners or holders thereof under the indenture. Accordingly, each person owning a beneficial interest in a global security must rely on the procedures of the depositary and, if such person is not a participant, on the procedures of the participant through which such person owns its interest, to exercise any rights of a holder under the indenture. We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a global security desires to give or take any action that a holder is entitled to give or take under the indenture, the depositary would authorize the participants holding the relevant beneficial interests to give or take such action, and such participants would authorize beneficial owners owning through such participants to give or to take such action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal and interest payments on interests represented by a global security will be made to the depositary or its nominee, as the case may be, as the registered owner of such global security. None of the trustee, us, the guarantor, or any other agent of the trustee or agent of ours or the guarantor will have any responsibility or liability for any facet of the records relating to or payments made on account of beneficial
ownership of interests. We expect that the depositary or its nominee, upon receipt of any payment of principal or interest in respect of a global security, will immediately credit participants’ accounts with payments in amounts proportionate to their respective beneficial interests in such global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial interests in the global securities held through such participants will be governed by standing customer instructions and customary practice, as is now the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will be the responsibility of such participants.
If the depositary is at any time unwilling or unable to continue as depository or if the depositary shall cease to be a clearing agency registered under the Exchange Act, and we fail to appoint a successor depository registered as a clearing agency under the Exchange Act within 90 days, we will issue debt securities in definitive form in exchange for the respective global securities. In addition, the owner of a beneficial interest in a global security will be entitled to receive debt securities in definitive certificated form in exchange for such beneficial interest if an event of default with respect to the debt securities has occurred and is continuing. Any debt securities issued in definitive form in exchange for the global securities will be registered in such name or names, and will be issued in denominations of $2,000 and integral multiples of $1,000 in excess thereof, as the depositary shall instruct the trustee. It is expected that such instructions will be based upon directions received by the depositary from participants with respect to the ownership of beneficial interests in the global securities.
Merger, Consolidation and Sale of Assets
Neither we nor the guarantor, as the case may be, may consolidate or merge with or into or sell, convey, transfer or lease all or substantially all of its assets to another entity unless we or the guarantor, as the case may be, are the continuing entity or the successor, transferee or lessee entity (if other than us or the guarantor, as the case may be) is organized and existing under the laws of the United States or any state thereof and expressly assumes our or the guarantor’s obligations, as applicable, under the indenture and the debt securities under the indenture and, immediately after giving effect to the transaction, we or the guarantor, as the case may be, or the successor, transferee or lessee entity (if other than the us or the guarantor, as the case may be) would not be in default in the performance of any covenant or condition of the indenture or the debt securities and no event of default would have occurred and be continuing.
Guarantees
Unless otherwise described in the applicable prospectus supplement, any debt securities issued by Healthpeak OP, LLC will be fully and unconditionally guaranteed by Healthpeak Properties, Inc., and debt securities issued by Healthpeak Properties, Inc. may be fully and unconditionally guaranteed by Healthpeak OP, LLC. The applicable prospectus supplement relating to a series of debt securities will provide that those debt securities will have the benefit of a guarantee by Healthpeak Properties, Inc. or Healthpeak OP, LLC, as applicable. These guarantees will be joint and several obligations of the guarantor. If a series of debt securities is so guaranteed, an indenture, or a supplemental indenture thereto, will be executed by the guarantor. The obligations of the guarantor under the guarantee will be limited as necessary to prevent that guarantee from constituting a fraudulent conveyance under applicable law. The terms of the guarantee will be set forth in the applicable prospectus supplement.
Events of Default and Related Matters
Unless we state otherwise in the applicable prospectus supplement, the following are “events of default” under the indenture with respect to any series of debt securities:
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failure to pay any interest on the debt securities of such series when due, continuing for 30 days;
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failure to pay principal of or any premium on the debt securities of such series when due;
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failure to pay a sinking fund installment, if any, when and as the same shall become payable by the terms of the debt securities of such series;
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failure to perform any covenants or agreements in the indenture (including any supplemental indenture or officer’s certificate pursuant to which the debt securities of such series were issued)
(other than a covenant or agreement which has been expressly included in the indenture solely for the benefit of a series of debt securities other than that series and other than a covenant or agreement a default in the performance of which is elsewhere specifically addressed in the indenture), continued for 60 days after written notice by the trustee to us and the guarantor or by the holders of at least 25% in aggregate principal amount of such series then outstanding to us and the guarantor;
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certain specified events under bankruptcy, insolvency or other similar laws with respect to us or the guarantor;
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any guarantee is not, or is claimed by the guarantor not to be, in full force and effect; or
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the occurrence of any other event of default with respect to debt securities of such series.
If an event of default with respect to any series of debt securities at the time outstanding (other than an event of default relating to certain specified events under bankruptcy, insolvency or similar laws) occurs and is continuing, either the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of such series may declare the principal amount of and all accrued but unpaid interest on all the outstanding debt securities of such series to be due and payable immediately. If an event of default relating to certain specified events under bankruptcy, insolvency or similar laws occurs and is continuing, then the principal amount of and all accrued but unpaid interest on all the outstanding debt securities of such series shall automatically become due and payable immediately without any acceleration or other action on the part of the trustee or the holders of the debt securities of such series. At any time after a declaration of acceleration with respect to the debt securities of a series has been made, but before a judgment or decree for payment of the money due has been obtained, the holders of a majority in aggregate principal amount of the outstanding debt securities of such series may, under certain circumstances, rescind and annul the acceleration.
The indenture provides that within 90 days after the occurrence thereof, and if known to the trustee, the trustee will give the holders of any series of debt securities notice of each event which is or, after notice or lapse of time or both, would become an event of default with respect to the debt securities of such series known to the trustee, unless such default has been cured or waived before the giving of such notice. Except in the case of a default or event of default in the payment of principal, premium, if any, or interest, if any, on any series of debt securities, the trustee shall be protected in withholding the notice if the trustee in good faith determines that the withholding of the notice is in the interest of the holders of outstanding debt securities of such series.
The indenture provides that, subject to the duty of the trustee during the continuance of an event of default to act with the required standard of care, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request, order or direction of any of the holders of any series of debt securities, unless the holders shall have offered to the trustee security or indemnity reasonably satisfactory to the trustee. Subject to such provisions for the indemnification of the trustee and subject to certain other limitations, the holders of a majority in aggregate principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceedings for any remedy available to the trustee, or exercising any trust or power conferred on the trustee, with respect to the debt securities of such series.
We are required to furnish to the trustee annually a statement as to our and the guarantor’s compliance, as applicable, with all conditions and covenants under the indenture and as to any default in our performance.
Satisfaction and Discharge of Indenture
The indenture, with respect to any series of debt securities (except for certain surviving obligations specified therein), will cease to be of further effect upon the satisfaction of certain conditions, including the payment in full of the principal of and premium, if any, and interest on the debt securities of such series or the deposit with the trustee of an amount of cash sufficient for the payment or redemption of the debt securities of such series, in accordance with the indenture.
Discharge and Defeasance
At our option, either (a) both we and the guarantor shall be discharged from our respective obligations with respect to the debt securities of a series (subject to survival of certain limited provisions in the indenture)
or (b) both we and the guarantors will cease to be under any obligation to comply with certain covenants described in the indenture relating to the maintenance of insurance and the filing and transmission of reports with respect to the debt securities of a series (and, if so specified pursuant to the indenture, any other restrictive covenant added for the benefit of such series of debt securities), in either case by depositing in trust with the trustee cash or U.S. government obligations (or a combination thereof) sufficient to pay the principal of and premium, if any, and interest on the debt securities of such series to their maturity or redemption date in accordance with the terms of the indenture and the debt securities of such series.
Modification of an Indenture
The indenture provides that we, the guarantor, as applicable, and the trustee may, without the consent of any holders of any series of debt securities issued under the indenture, enter into supplemental indentures for the purposes, among other things, of:
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adding to the covenants or events of default for the protection or benefit of holders of all or any series of debt securities or surrendering any right or power conferred upon us or the guarantor;
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deleting or modifying any events of default with respect to any series of debt securities, the form and terms of which are being established pursuant to such supplemental indenture;
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changing or eliminating any provisions of the indenture so long as there are no holders entitled to the benefit of such provisions;
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providing for the assumption by a successor corporation of our covenants and obligations contained in the debt securities of one or more series and in the indenture or any supplemental indenture;
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providing for the appointment of a successor trustee under the indenture;
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securing the debt securities of any series;
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curing ambiguities or inconsistencies in the indenture, correcting or supplementing any provision which may be defective or inconsistent with any other provision, and conforming the terms of the indenture applicable to the debt securities of any series to the description of the terms of such debt securities in the applicable offering memorandum, prospectus supplement or other offering document;
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complying with amendments to the TIA;
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providing for the assumption by a successor corporation of a guarantor of applicable covenants therein, and adding guarantors or co-obligors or to release guarantors from their guarantees with respect to the debt securities of any series;
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making any change in any series of debt securities that does not adversely affect in any material respect the rights of holders of such debt securities;
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supplementing any of the provisions of the indenture to the extent necessary to permit or facilitate the defeasance and discharge of any series of debt securities; provided that any such action shall not adversely affect the interests of the holders of the debt securities of such series or any other series of debt securities; or
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establishing the form and terms of the debt securities of any series as permitted by the indenture and authorizing the issuance of additional debt securities of a series previously authorized.
With specific exceptions, the indenture or the rights of the holders of any series of debt securities may be modified by us and the trustee with the consent of the holders of a majority in aggregate principal amount of the outstanding debt securities of such series voting separately, but no modification may be made without the consent of the holder of each outstanding debt security of such series that, among other things, would:
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extend the maturity of any payment of principal of or any installment of interest on the debt securities of such series;
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reduce the principal amount of any debt security, or the interest thereon, or any premium payable on any debt security;
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change any place of payment where, or the currency in which, any debt security or any premium or interest is denominated or payable;
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change the ranking of the debt securities of any series;
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impair the right to sue for the enforcement of any payment on or with respect to any debt security;
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modify or affect in any manner adverse to the holders of the debt securities the terms and conditions of the obligations of the guarantor in respect of the payments of principal and premium, if any, and interest; or
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reduce the percentage in principal amount of outstanding debt securities of any series required to consent to any supplemental indenture, any waiver of compliance with provisions of the indenture or certain defaults and their consequences provided for in the indenture, reduce the requirements of the indenture for quorum or voting or otherwise modify the sections in the indenture relating to these consents and waivers.
Governing Law
The indenture, the debt securities and any guarantees shall be construed in accordance with and governed by the laws of the State of New York. The indenture provides that we, the guarantor, as applicable, the trustee and the holders of the debt securities waive, to the extent permitted by applicable law, the right to trial by jury in respect of any litigation in connection with the indenture.
CERTAIN PROVISIONS OF MARYLAND LAW AND HEALTHPEAK’S CHARTER AND BYLAWS
The following description summarizes certain provisions of Maryland law and of our charter and bylaws. This summary is not complete and is subject to, and is qualified in its entirety by reference to, our charter, our bylaws and applicable provisions of the MGCL. For a complete description, we refer you to the MGCL, our charter and our bylaws. We have incorporated by reference our charter and bylaws as exhibits to the registration statement of which this prospectus is a part. As used in this “Certain Provision of Maryland Law and Healthpeak’s Charter and Bylaws,” references to “our company,” “we,” “us” or “our” refer solely to Healthpeak Properties, Inc. and not to any of its subsidiaries, unless otherwise expressly stated or the context otherwise requires.
Election of Directors
Our bylaws provide that our board may establish, increase or decrease the number of directors, provided that the number thereof shall never be less than three nor more than eleven. Our bylaws also provide for the election of directors, in uncontested elections, by a majority of the votes cast. In contested elections, the election of directors shall be by a plurality of the votes cast. Holders of common stock have no right to cumulative voting for the election of directors. Consequently, at each annual meeting of stockholders, the holders of a majority of the outstanding shares of our common stock can elect all of our directors. A vacancy resulting from an increase in the number of directors may be filled by a majority vote of the entire board or by the affirmative vote of the holders of a majority of our shares then entitled to vote at an election of directors. Other vacancies may be filled by the vote of a majority of the remaining directors.
Removal of Directors
Our charter provides that a director of ours may be removed by the affirmative vote of the holders of two-thirds of the outstanding shares of our voting stock or by a unanimous vote of all other directors. Our stockholders may elect a successor to fill any vacancy which results from the removal of a director.
Business Combinations
Under Maryland law, “business combinations” between a Maryland corporation and an interested stockholder or an affiliate of an interested stockholder are prohibited for five years after the most recent date on which the interested stockholder becomes an interested stockholder. These business combinations include a merger, consolidation, share exchange, or, in circumstances specified in the statute, an asset transfer or issuance or reclassification of equity securities. An interested stockholder is defined as:
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any person who beneficially owns ten percent or more of the voting power of the corporation’s shares; or
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an affiliate of the corporation who, at any time within the two-year period prior to the date in question, was the beneficial owner of ten percent or more of the voting power of the then outstanding voting stock of the corporation.
After the five-year prohibition, any business combination between the Maryland corporation and an interested stockholder generally must be recommended by the board of the corporation and approved by the affirmative vote of at least:
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80% of the votes entitled to be cast by holders of outstanding shares of voting stock of the corporation; and
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two-thirds of the votes entitled to be cast by holders of voting stock of the corporation other than shares held by the interested stockholder with whom or with whose affiliate the business combination is to be effected or which are held by an affiliate or associate of the interested stockholder.
These super-majority vote requirements do not apply if the corporation’s common stockholders receive a minimum price, as defined under Maryland law, for their shares in the form of cash or other consideration in the same form as previously paid by the interested stockholder for its shares. None of these provisions of Maryland law will apply, however, to business combinations that are approved or exempted by the board of the corporation prior to the time that the interested stockholder becomes an interested stockholder.
In addition to the restrictions on business combinations provided under Maryland law, our charter also contains restrictions on business combinations. See “Description of Capital Stock — Business Combination Provisions.”
Control Share Acquisitions
Maryland law provides that holders of “control shares” of a Maryland corporation acquired in a “control share acquisition” have no voting rights with respect to the control shares except to the extent approved by a vote of two-thirds of the votes entitled to be cast on the matter. Shares of stock owned by the acquiror, by officers or by directors who are employees of the corporation are excluded from shares entitled to vote on the matter. “Control shares” are voting shares of stock which, if aggregated with all other shares of stock owned by the acquiror or shares of stock for 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 directors 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.
Control shares do not include shares the acquiring person is then entitled to vote as a result of having previously obtained stockholder approval. Except as otherwise specified in the statute, a “control share acquisition” means the acquisition of control shares.
Once a person who has made or proposes to make a control share acquisition has undertaken to pay expenses and satisfied other conditions, the person may compel the board to call a special meeting of stockholders 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 corporation may itself present the question at any stockholders 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 statute, then the corporation may be able to redeem any or all of the control shares for fair value, except for control shares for which voting rights previously have been approved. The right of the corporation to redeem control shares is subject to certain conditions and limitations. Fair value is determined without regard to the absence of voting rights for control shares, as of the date of the last control share acquisition by the acquiror or of any meeting of stockholders at which the voting rights of control shares are considered and not approved. If voting rights for control shares are approved at a stockholders meeting and the acquiror becomes entitled to vote a majority of the shares entitled to vote, all other stockholders may exercise appraisal rights. The fair value of the shares as determined for purposes of these appraisal rights may not be less than the highest price per share paid by the acquiror in the control share acquisition. Some of the limitations and restrictions otherwise applicable to the exercise of dissenters’ rights do not apply in the context of a control share acquisition.
The control share acquisition statute does not apply to shares acquired in a merger, consolidation or share exchange if the corporation is a party to the transaction or to acquisitions approved or exempted by the charter or bylaws of the corporation. Our bylaws contain a provision exempting acquisitions of shares of our stock from the control share acquisition statute. However, our board may amend our bylaws in the future to repeal or modify this exemption, in which case any control shares of our company acquired in a control share acquisition will be subject to the control share acquisition statute.
Unsolicited Takeovers
Under Maryland law, a Maryland corporation with a class of equity securities registered under the Exchange Act and at least three independent directors may elect to be subject to certain statutory provisions relating to unsolicited takeovers which, among other things, would automatically classify the board into three classes with staggered terms of three years each and vest in the board the exclusive right to determine the number of directors and the exclusive right, by the affirmative vote of a majority of the remaining directors, to fill vacancies on the board, even if the remaining directors do not constitute a quorum. These statutory provisions relating to unsolicited takeovers also provide that any director elected to fill a vacancy shall hold
office for the remainder of the full term of the class of directors in which the vacancy occurred, rather than the next annual meeting of directors as would otherwise be the case, and until his successor is elected and qualified.
Our board of directors has adopted a resolution prohibiting us from electing to be subject to the provisions of the unsolicited takeover statute relating to the classification of the board unless such election is first approved by our stockholders by the affirmative vote of a majority of all the votes entitled to be cast on the matter. An election to be subject to any or all of the other foregoing statutory provisions may be made in our charter or bylaws, or by resolution of our board without stockholder approval. Any such statutory provision to which we elect to be subject will apply even if other provisions of Maryland law or our charter or bylaws provide to the contrary. Neither our charter nor our bylaws provides that we are subject to any of the foregoing statutory provisions relating to unsolicited takeovers. However, our board could adopt a resolution, without stockholder approval, to elect to become subject to some or all of these statutory provisions except the statutory provisions relating to the classification of the board.
If we made an election, upon stockholder approval of such election, to be subject to the statutory provisions relating to the classification of the board and our board were divided into three classes with staggered terms of office of three years each, the classification and staggered terms of office of our directors would make it more difficult for a third party to gain control of our board since at least two annual meetings of stockholders, instead of one, generally would be required to effect a change in the majority of our board.
Amendments to the Charter
Provisions of our charter on business combinations, the number of directors and certain ownership restrictions may be amended only if approved by our board and by our stockholders by the affirmative vote of two-thirds of all of the votes entitled to be cast by our stockholders on the matter. Other amendments to our charter require approval by our board and approval by our stockholders by the affirmative vote of a majority of all the votes entitled to be cast by our stockholders on the matter.
Amendment to the Bylaws
Provisions of our bylaws on the number of directors, in certain circumstances, and the vote required to amend the bylaws may be amended only by unanimous vote of the board or by the affirmative vote of not less than 90% of all of the votes entitled to be cast by our stockholders on the matter. Other amendments to our bylaws require the affirmative vote of a majority of the entire board or the affirmative vote of a majority of all of the votes entitled to be cast by our stockholders on the matter.
Dissolution of Healthpeak Properties, Inc.
Our dissolution must be approved by our board by a majority vote of the entire board and by our stockholders by the affirmative vote of a majority of all the votes entitled to be cast by our stockholders on the matter.
Advance Notice of Director Nominations and New Business; Procedures of Special Meetings Requested by Stockholders
Our bylaws provide that nominations of persons for election to the board and the proposal of business to be considered by stockholders at the annual or special meeting of stockholders may be made only:
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pursuant to our notice of the meeting;
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by or at the direction of the board; or
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by a stockholder who was a stockholder at the time the notice of meeting was given and is entitled to vote at the meeting and who has complied with the advance notice procedures, including the minimum time period, described in the bylaws.
Our bylaws also provide that only the business specified in our notice of meeting may be brought before a special meeting of stockholders. Our bylaws provide that our stockholders have the right to call a
special meeting only upon the written request of the stockholders holding in the aggregate not less than 50% of the outstanding shares entitled to vote on the business proposed to be transacted at such meeting.
Proxy Access
Our bylaws permit any stockholder or group of up to 25 stockholders (counting as one stockholder, for purposes of the aggregation limit, any two or more funds that are part of the same qualifying fund group, as such term is defined in our bylaws) who have maintained continuous qualifying ownership of 3% or more of our outstanding common stock for at least the previous three years to include up to a specified number of director nominees in our proxy materials for an annual meeting of stockholders. A nominating stockholder is considered to own only the shares for which the stockholder possesses the full voting and investment rights and the full economic interest (including the opportunity for profit and risk of loss). Under this provision, borrowed or hedged shares do not count as “owned” shares. Furthermore, to the extent not otherwise excluded pursuant to this definition of ownership, a nominating stockholder’s “short position” as defined in Rule 14e-4 under the Exchange Act is deducted from the shares otherwise “owned.” Loaned shares are counted toward the ownership requirement, provided that certain recall requirements described in our bylaws are met. If a group of stockholders is aggregating its shareholdings in order to meet the 3% ownership requirement, the ownership of the group will be determined by aggregating the lowest number of shares continuously owned by each member during the three-year holding period.
The maximum number of stockholder nominees permitted under the proxy access provisions of our bylaws shall not exceed the greater of (i) two or (ii) 20% of the directors in office as of the last day a notice of nomination may be timely received. If the 20% calculation does not result in a whole number, the maximum number of stockholder nominees is the closest whole number below 20%. If one or more vacancies occurs for any reason after the nomination deadline and our board decides to reduce the size of our board in connection therewith, the 20% calculation will be applied to the reduced size of the board, with the potential result that a stockholder nominee may be disqualified. Stockholder-nominated candidates whose nomination is withdrawn or whom the board determines to include in our proxy materials as board-nominated candidates will be counted against the 20% maximum. In addition, any director in office as of the nomination deadline who was included in our proxy materials as a stockholder nominee for either of the two preceding annual meetings and whom our board decides to renominate for election to the board also will be counted against the 20% maximum.
Notice of a nomination pursuant to the proxy access provisions of our bylaws must be received no earlier than 150 days and no later than 120 days before the anniversary of the date that we distributed our proxy statement for the previous year’s annual meeting of stockholders. The proxy access provisions of our bylaws require certain disclosure, representations and agreements to be provided or made by nominating stockholders and contain certain other procedural provisions.
A stockholder nominee will not be eligible for inclusion in our proxy materials if any stockholder has nominated a person pursuant to the advance notice provision of our bylaws, if the nominee would not be independent, if the nominee’s election would cause us to violate our bylaws, our charter or any applicable listing standards, laws, rules or regulations, if the nominee is or has been an officer or director of a competitor, as defined in Section 8 of the Clayton Antitrust Act of 1914, within the past three years, or if the nominee or the stockholder who nominated him or her has provided false and misleading information to us or otherwise breached any of its or their obligations, representations or agreements under the proxy access provisions of our bylaws. Stockholder nominees who are included in our proxy materials but subsequently withdraw from or become ineligible or unavailable for election at the meeting or do not receive at least 10% of the votes cast in the election will be ineligible for nomination under the proxy access provisions of our bylaws for the next two annual meetings. A nomination made under the proxy access provisions of our bylaws will be disregarded at the annual meeting under certain circumstances described in our bylaws.
Anti-Takeover Effect of Provisions of Maryland Law and of the Charter and Bylaws
The provisions in the charter on removal of directors and business combinations, the business combinations and control share acquisition provisions of Maryland law, the unsolicited takeover provisions of Maryland law (if we elect to become subject to such provisions) and the provisions of our bylaws relating to advance notice, proxy access and stockholder-requested special meetings may delay, defer or
prevent a change of control or other transaction in which holders of some, or a majority, of the common stock might receive a premium for their common stock over the then prevailing market price or which such holders might believe to be otherwise in their best interests.
Limitation of Liability and Indemnification
Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages. However, a Maryland corporation may not limit liability resulting from actual receipt of an improper benefit or profit in money, property or services. Also, liability resulting from active and deliberate dishonesty may not be eliminated if a final judgment establishes that the dishonesty is material to the cause of action. Our charter contains a provision which limits the liability of directors and officers for money damages to the maximum extent permitted by Maryland law. This provision does not limit our right or that of our stockholders to obtain equitable relief, such as an injunction or rescission.
Our bylaws obligate us, to the maximum extent permitted by Maryland law, to indemnify and, without requiring a preliminary determination as to the ultimate entitlement to indemnification, to pay or reimburse reasonable expenses before final disposition of a proceeding to:
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any present or former director or officer who is made a party to the proceeding by reason of his service in that capacity; or
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any individual who, while one of our directors or officers and at our request, serves or has served another corporation, partnership, joint venture, trust, employee benefit plan or any other enterprise as a director, officer, partner or trustee of such corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise and who is made a party to the proceeding by reason of his service in that capacity.
The bylaws authorize us, with the approval of our board, to provide indemnification and advancement of expenses to our agents and employees.
Unless limited by a corporation’s charter, Maryland law requires a corporation to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he is made a party by reason of his service in that capacity, or in the defense of any claim, issue or matter in the proceeding. Our charter does not alter this requirement.
Maryland law permits a corporation to indemnify its present and former directors and officers, among others, against:
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judgments;
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penalties;
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fines;
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settlements; and
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reasonable expenses actually incurred by them in connection with any proceeding to which they may be made a party by reason of their service in those or other capacities.
Maryland law does not permit a corporation to indemnify its present and former directors and officers if it is established that:
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the act or omission of the director or officer was material to the matter giving rise to the proceeding and was committed in bad faith or 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 generally may not indemnify for an adverse judgment in a suit by or in the right of the corporation. Also, a Maryland corporation generally may not indemnify for a
judgment of liability on the basis that personal benefit was improperly received. In either of these cases, a Maryland corporation may indemnify for expenses only if a court so orders.
Maryland law permits a corporation to advance reasonable expenses to a director or officer. First, however, the corporation must receive a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification by the corporation. The corporation must also receive a written undertaking, either by the director or officer or on his behalf, to repay the amount paid or reimbursed by the corporation if it shall ultimately be determined that the standard of conduct was not met. The termination of any proceeding by conviction, or upon a plea of nolo contendere or its equivalent, or an entry of any order of probation prior to judgment, creates a rebuttable presumption that the director or officer did not meet the requisite standard of conduct required for indemnification to be permitted.
It is the position of the SEC that indemnification of directors and officers for liabilities arising under the Securities Act is against public policy and is unenforceable pursuant to Section 14 of the Securities Act.
DESCRIPTION OF HEALTHPEAK OP, LLC’S OPERATING AGREEMENT
The following description summarizes certain provisions of the Operating Agreement of Healthpeak OP, LLC, or the operating agreement. This summary is not complete and is subject to, and is qualified in its entirety by reference to, the applicable provisions of the Maryland Limited Liability Company Act, or the Act, and the operating agreement. For a complete description, we refer you to the Act and the operating agreement. We have incorporated by reference our operating agreement as an exhibit to the registration statement of which this prospectus is a part. As used in this “Description of Healthpeak OP, LLC’s Operating Agreement,” references to “our company,” “we,” “us” or “our” refer solely to Healthpeak Properties, Inc., in its capacity as the managing member of our operating company, and not to any of its subsidiaries, unless otherwise expressly stated or the context otherwise requires.
General
Substantially all of our assets are held by, and substantially all of our operations are conducted through, our operating company, either directly or through its subsidiaries. We are the managing member of our operating company, and, as of February 10, 2023, 546,782,509 common units of membership interests in our operating company, or common units, were outstanding and we owned 100% of the outstanding common units, in each case, including common units issuable upon conversion of vested LTIP Units (as described below) of our operating company. In connection with the conversion of Old Healthpeak into Healthpeak OP, LLC, we became the managing member and sole member of our operating company. Our operating company is also authorized to issue a class of units of membership interest designated as LTIP Units and additional classes of units of membership interest, each having the terms described below. The common units are not listed on any exchange nor are they quoted on any national market system.
Provisions in the operating agreement may delay or make more difficult unsolicited acquisitions of us or changes in our control. These provisions could discourage third parties from making proposals involving an unsolicited acquisition of us or change of our control, although some stockholders might consider such proposals, if made, desirable. These provisions also make it more difficult for third parties to alter the management structure of our operating company without the concurrence of our board of directors. These provisions include, among others:
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redemption rights of members and certain assignees of common units;
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transfer restrictions on common units and other membership interests;
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a requirement that we may not be removed as the managing member of our operating company without our consent;
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our ability in some cases to amend the operating agreement and to cause our operating company to issue preferred membership interests in our operating company with terms that we may determine, in either case, without the approval or consent of any non-managing member; and
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the right of the non-managing members to consent to certain transfers of our, in our capacity as managing member, membership interest (whether by sale, disposition, statutory merger or consolidation, liquidation or otherwise).
Purpose, Business and Management
Our operating company was formed for the purpose of conducting any business, enterprise or activity permitted by or under the Act, directly or through one or more partnerships, joint ventures, subsidiaries, business trusts, limited liability companies or similar arrangements.
In general, our board of directors manages the business and affairs of our operating company by directing our business and affairs, in our capacity as the sole managing member of our operating company. Except as otherwise expressly provided in the operating agreement and subject to the rights of holders of any class or series of membership interest, all management powers over the business and affairs of our operating company are exclusively vested in us, in our capacity as the sole managing member of our operating company, and no member will have any right to participate in or exercise control or management power
over the business and affairs of the operating company. We may not be removed as the managing member of our operating company, with or without cause, without our consent, which we may give or withhold in our sole and absolute discretion.
Restrictions on Managing Member’s Authority
The operating agreement prohibits us, in our capacity as managing member, from taking any action that would make it impossible to carry on the ordinary business of our operating company, except as otherwise provided in the operating agreement or with the consent of the non-managing members. We generally may not, without the prior consent of the members of our operating company (including us), amend, modify or terminate the operating agreement, except for certain amendments described in the operating agreement. We may not, in our capacity as the managing member of our operating company, except as otherwise provided in the operating agreement or with the consent of the non-managing members of the operating company:
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transfer all or any portion of our managing membership interest in our operating company or admit any person as a successor managing member, subject to the exceptions described in the section entitled “— Transfers of Membership Interests — Restrictions on Transfers by the Managing Member”; or
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voluntarily withdraw as the managing member.
Without the consent of each affected member or in connection with a transfer of all of our interests in our partnership in connection with a merger, consolidation or other combination of our assets with another entity, a sale of all or substantially all of our assets or a reclassification, recapitalization or change in our outstanding stock permitted without the consent of the members as described in the section entitled “— Transfers of Membership Interests — Restrictions on Transfers by the Managing Member,” or a permitted termination transaction, we may not enter into any contract, mortgage, loan or other agreement that, in the absence of any default of the managing member of its obligations thereunder, expressly prohibits or restricts us or our operating company from performing our or its specific obligations in connection with a redemption of units or expressly prohibits or restricts a limited partner from exercising its redemption rights in full. In addition to any approval or consent required by any other provision of the operating agreement, we may not, without the consent of each affected member, amend the operating agreement or take any other action that would:
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adversely modify in any material respect the limited liability of a member;
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alter the rights of any member to receive the distributions to which such member is entitled, or alter the allocations specified in the operating agreement, except to the extent permitted by the operating agreement including in connection with the creation or issuance of any new class or series of membership interest or to effect or facilitate a permitted termination transaction;
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alter or modify the redemption rights of holders of common units (except as permitted under the operating agreement to effect or facilitate a permitted termination transaction);
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alter or modify the provisions governing the transfer of our managing membership interest in our operating company (except as permitted under the operating agreement to effect or facilitate a permitted termination transaction);
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remove certain provisions of the operating agreement relating to the requirements for us to qualify as a REIT or permitting us to avoid paying tax under Sections 857 or 4981 of the Code; or
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amend the provisions of the operating agreement requiring the consent of each affected member before taking any of the actions described above or the related definitions specified in the operating agreement (except as permitted under the operating agreement to effect or facilitate a permitted termination transaction).
Additional Members
We may cause our operating company to issue additional units in one or more classes or series or other membership interests and to admit additional members to our operating company from time to time, on
such terms and conditions and for such capital contributions as we may establish in our sole and absolute discretion, without the approval or consent of any limited partner.
The operating agreement authorizes our operating company to issue common units, LTIP Units and preferred units, and our operating company may issue additional membership interests in one or more additional classes, or one or more series of any of such classes, with such designations, preferences, conversion and other rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption (including, without limitation, terms that may be senior or otherwise entitled to preference over existing units) as we may determine, in our sole and absolute discretion, without the approval of any additional members or any other person. Without limiting the generality of the foregoing, we may specify, as to any such class or series of membership interest, the allocations of items of operating company income, gain, loss, deduction and credit to each such class or series of membership interest.
Ability to Engage in Other Businesses; Conflicts of Interest
Without the consent of the members of the operating company, not to be unreasonably withheld, conditioned, or delayed, we may not conduct any business other than in connection with the ownership, acquisition and disposition of membership interests, the management of the business and affairs of our operating company, our operation as a reporting company with a class (or classes) of securities registered under the Exchange Act, our operations as a REIT, the offering, sale, syndication, private placement or public offering of stock, bonds, securities or other interests, financing or refinancing of any type related to our operating company or its assets or activities and such activities as are incidental to those activities discussed above. In general, we must contribute any assets or funds that we acquire to our operating company whether as capital contributions, loans or otherwise, as appropriate, in exchange for additional membership interests. We may, however, in our sole and absolute discretion, from time to time hold or acquire assets in our own name or otherwise other than through our operating company so long as we take commercially reasonable measures to ensure that the economic benefits and burdens of such property are otherwise vested in our operating company.
Distributions
Our operating company will distribute such amounts, at such times, as we may in our sole and absolute discretion determine:
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first, with respect to any membership interests that are entitled to any preference in distribution, including the preferred units, in accordance with the rights of the holders of such class(es) of membership interest, and, within each such class, among the holders of such class pro rata in proportion to their respective percentage interests of such class; and
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second, with respect to any membership interests that are not entitled to any preference in distribution, including the common units and, except as described below with respect to liquidating distributions and as may be provided in any incentive award plan or any applicable award agreement and the LTIP Units, in accordance with the rights of the holders of such class(es) of membership interest, and, within each such class, among the holders of each such class, pro rata in proportion to their respective percentage interests of such class.
Exculpation and Indemnification of Managing Member
The operating agreement provides that we are not liable to our operating company or any member for any action or omission taken in our capacity as managing member, for the debts or liabilities of our operating company or for the obligations of our operating company under the operating agreement, except for liability for our fraud, willful misconduct or gross negligence, or pursuant to any express indemnity we may give to our operating company or in connection with a redemption as described in the section entitled “— Redemption Rights of Qualifying Parties.” The operating agreement also provides that any obligation or liability in our capacity as the managing member of our operating company that may arise at any time under the operating agreement or any other instrument, transaction or undertaking contemplated by the operating agreement will be satisfied, if at all, out of our assets or the assets of our operating company only,
and no such obligation or liability will be personally binding upon any of our directors, stockholders, officers, employees or agents.
In our capacity as managing member, we are entitled to a presumption that any act or failure to act on the part of the managing member, and any decision or determination made by us, is presumed to satisfy our duties as the managing member, whether under the operating agreement or otherwise existing at law or in equity, and no act or failure to act by us, or decision or determination made by us (whether with respect to a change of control of the operating company or otherwise) shall be subject to any duty, standard of conduct, burden of proof or scrutiny, whether at law or in equity, or otherwise set forth in the operating agreement.
In addition, the operating agreement provides that, to the fullest extent that a Maryland corporation may indemnify and advance expenses to directors and officers of a Maryland corporation under the laws of the State of Maryland, the operating company will indemnify, and will pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, any indemnitee (as defined in the operating agreement) who is made or threatened to be made a party to, or witness in, a proceeding by reason of his or her service as an indemnitee. The operating agreement provides that, without limitation, the foregoing indemnity will extend to any liability of any indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of the operating company or any subsidiary of the operating company (including, without limitation, any indebtedness that the operating company or any subsidiary of the operating company has assumed or taken subject to). The operating agreement further provides that the operating company may indemnify each indemnitee to the fullest extent permitted by law and the operating agreement. The operating agreement provides that the termination of any proceeding by judgment, order or settlement does not create a presumption that the indemnitee did not meet the requisite standard of conduct set forth in the operating agreement, and that the termination of any proceeding by conviction of an indemnitee or upon a plea of nolo contendere or its equivalent by an indemnitee, or an entry of an order of probation against an indemnitee prior to judgment, does not create a presumption that such indemnitee acted in a manner contrary to that specified in the operating agreement with respect to the subject matter of such proceeding. The operating agreement further provides that any indemnification pursuant to the operating agreement will be made only out of the assets of the operating company, and neither the managing member nor any other holder will have any obligation to contribute to the capital of the operating company or otherwise provide funds to enable the operating company to fund its indemnification obligations under the operating agreement. Under the operating agreement, an “indemnitee” includes us, as managing member, each of our present or former directors and officers of the operating company or the managing member, and such other persons (including affiliates or employees of the managing member or the operating company) as the operating company may designate from time to time in its sole and absolute discretion.
The operating company’s obligation to indemnify or advance expenses under the operating agreement to any such person shall be reduced by any amount such person has actually received as indemnification or advancement of expenses from any other person, including the managing member or from any insurance policy or policies.
Business Combinations and Dissolution of our Operating Company
Subject to the limitations on the transfer of our interest in our operating company described in the section entitled “— Transfers of Membership Interests — Restrictions on Transfers by the Managing Member,” we generally have the exclusive power to cause our operating company to merge, reorganize, consolidate, sell all or substantially all of its assets or otherwise combine its assets with another entity. We may also elect to dissolve our operating company without the consent of any additional member.
Redemption Rights of Qualifying Parties
Beginning 14 months after first acquiring such common units, each member and some assignees of the members will have the right, subject to the terms and conditions set forth in the operating agreement, to require our operating company to redeem all or a portion of the common units held by such member or assignee in exchange for a cash amount per common unit equal to the value of one share of our common stock, determined in accordance with and subject to adjustment under the operating agreement. Our operating company’s obligation to redeem common units does not arise and is not binding against our operating
company until the 31st business day after we receive the holder’s notice of redemption or, if earlier, the day we notify the holder seeking redemption that we have declined to acquire some or all of the common units tendered for redemption.
On or before the close of business on the 30th business day after a holder of common units gives notice of redemption to us, we may, in our sole and absolute discretion but subject to the restrictions on the ownership and transfer of our stock set forth in our charter and described in the section entitled “Description of Capital Stock — Transfer and Ownership Restrictions Relating to Our Common Stock,” elect to acquire some or all of the common units tendered for redemption from the tendering party in exchange for shares of our common stock, based on an exchange ratio of one share of common stock for each common unit, subject to adjustment as provided in the operating agreement. The operating agreement does not require us to register, qualify or list any shares of common stock issued in exchange for common units with the SEC, with any state securities commissioner, department or agency, under the Securities Act or the Exchange Act or with any stock exchange.
Transfers of Membership Interests
Restrictions on Transfers by Members. Until the expiration of 14 months after the date on which a member acquires a membership interest, no member generally may directly or indirectly transfer all or any portion of such membership interest without our consent, which we may give or withhold in our sole and absolute discretion, except for certain permitted transfers to certain affiliates, family members and charities, and certain pledges of membership interests, except as provided for in the operating agreement, to lending institutions in connection with bona fide loans. After the expiration of such initial holding period, the member will have the right to transfer all or any portion of its membership interest without our consent to any person that is an “accredited investor,” within the meaning set forth in Rule 501 promulgated under the Securities Act, upon ten business days prior notice to us, subject to certain provisions of our operating agreement and the satisfaction of conditions specified in the operating agreement, including minimum transfer requirements and our right of first refusal.
Restrictions on Transfers by the Managing Member. Except as described below, any transfer of all or any portion of our membership interest in our operating company, whether by sale, disposition, statutory merger or consolidation, liquidation or otherwise, must be approved by the consent of the non-managing members (excluding, for purposes of such consent, any outstanding LTIP Units). Subject to the rights of holders of any class or series of membership interest, we may transfer all (but not less than all) of our managing membership interest without the consent of the non-managing members in connection with a permitted termination transaction, which is a merger, consolidation or other combination of our assets with another entity, a sale of all or substantially all of our assets not in the ordinary course of business, or a reclassification, recapitalization or change in any outstanding shares of our stock or other outstanding equity interests, if:
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in connection with such event, all of the members will receive or have the right to elect to receive, for each common unit, the greatest amount of cash, securities or other property paid to a holder of one share of our common stock (subject to adjustment in accordance with the operating agreement) in the transaction and, if a purchase, tender or exchange offer is made and accepted by holders of our common stock in connection with the event, each holder of common units receives, or has the right to elect to receive, the greatest amount of cash, securities or other property that the holder would have received if it had exercised its redemption right and received shares of our common stock in exchange for its common units immediately before the expiration of the purchase, tender or exchange offer and had accepted the purchase, tender or exchange offer; or
•
substantially all of the assets of our operating company will be owned by a surviving entity (which may be our operating company or another limited liability company or entity) in which the members of our operating company holding common units immediately before the event will hold a percentage interest based on the relative fair market value of the net assets of our operating company and the other net assets of the surviving entity immediately before the event, which interest will be on terms that are at least as favorable as the terms of the common units in effect immediately before the event and as those applicable to any other non-managing members or owners of the surviving entity and will include a right to redeem interests in the surviving entity for the consideration
described in the preceding bullet or cash on similar terms as those in effect with respect to the common units immediately before the event, or, if common equity securities of the person controlling the surviving entity are publicly traded, such common equity securities.
We may also transfer all (but not less than all) of our interest in our operating company to an affiliate of us without the consent of any non-managing members, subject to the rights of holders of any class or series of membership interest.
In addition, any transferee of our interest in our operating company must be admitted as a managing member of our operating company, assume, by operation of law or express agreement, all of our obligations as managing member under the operating agreement, accept all of the terms and conditions of the operating agreement and execute such instruments as may be necessary to effectuate the transferee’s admission as a managing member.
We may not voluntarily withdraw as the managing member of our operating company without the consent of a majority in interest of the non-managing members, other than upon the transfer of our entire interest in our operating company and the admission of our successor as a managing member of our operating company.
LTIP Units
Our operating company is authorized to issue a class of units of membership interest designated as “LTIP Units.” We may cause our operating company to issue LTIP Units to persons who provide services to or for the benefit of our operating company, for such consideration or for no consideration as we may determine to be appropriate, and we may admit such persons as members of our operating company, without the approval or consent of any additional member. Further, we may cause our operating company to issue LTIP Units in one or more classes or series, with such terms as we may determine, without the approval or consent of any additional member. LTIP Units may be subject to vesting, forfeiture and restrictions on transfer and receipt of distributions pursuant to the terms of any applicable equity-based plan and the terms of any award agreement relating to the issuance of the LTIP Units.
Conversion Rights. Vested LTIP Units are convertible at the option of each member and some assignees of the members (in each case, that hold vested LTIP Units) into common units, upon notice to us and our operating company, to the extent that the capital account balance of the LTIP unitholder with respect to all of his or her LTIP Units is at least equal to our capital account balance with respect to an equal number of common units. We may cause our operating company to convert vested LTIP Units eligible for conversion into an equal number of common units at any time, upon not less than three calendar days notice prior to the conversion date.
If we or our operating company is party to a transaction, including a merger, consolidation, sale of all or substantially all of our assets or other business combination, as a result of which common units are exchanged for or converted into the right, or holders of common units are otherwise entitled, to receive cash, securities or other property (or any combination thereof), we must cause our operating company to convert any vested LTIP Units then eligible for conversion into common units immediately before the transaction, taking into account any special allocations of income that would be made as a result of the transaction. Our operating company must use commercially reasonable efforts to cause each member (other than a party to such a transaction or an affiliate of such a party) holding LTIP Units that will be converted into common units in such a transaction to be afforded the right to receive the same kind and amount of cash, securities and other property (or any combination thereof) for such common units that each holder of common units receives in the transaction.
Transfer. Unless an applicable equity-based plan or the terms of an award agreement specify additional restrictions on transfer of LTIP Units, LTIP Units are transferable to the same extent, and subject to the same restrictions, as common units, as described above in the section entitled “— Transfers of Membership Interests.”
Voting Rights. Members holding LTIP Units are entitled to vote together as a class with members holding common units on all matters on which members holding common units are entitled to vote or consent, and may cast one vote for each LTIP Unit so held.
Adjustment of LTIP Units. If our operating company takes certain actions, including making a distribution of units on all outstanding common units, combining or subdividing the outstanding common units into a different number of common units or reclassifying the outstanding common units, we must adjust the number of outstanding LTIP Units or subdivide or combine outstanding LTIP Units to maintain a one-for-one conversion ratio and economic equivalence between common units and LTIP Units.
Preferred Units
Our operating company is authorized to issue preferred units. As of February 10, 2023, there are no preferred units issued or outstanding. Preferred units rank senior to the common units and LTIP Units. Holders of series preferred units are entitled to receive preferential cash distributions in an amount to be fixed at the time of issuance of such units. Holders of preferred units are also entitled to receive a liquidation preference in the event of any voluntary or involuntary liquidation, dissolution or winding up of the affairs of our operating company that are substantially similar to those of our preferred stock (but, in the case of distributions upon the liquidation, dissolution or winding up of the affairs of our operating company, only to the extent consistent with a liquidation in accordance with positive capital account balances). Preferred units are also subject to redemption by our operating company in connection with our reacquisition of shares of our preferred stock. See the section entitled “Description of Capital Stock — Preferred Stock.”
Conversion Rights. Preferred units will be converted into common units in the event of a conversion of our preferred stock, at the option of holders of shares of preferred stock pursuant to the articles supplementary designating the terms of the preferred stock, as described above in the section entitled “Description of Capital Stock — Preferred Stock.”
Transfer. Preferred units are transferrable to the same extent as common units, as described above in the section entitled “— Transfers of Membership Interests — Restrictions on Transfers by the Managing Member.”
Voting Rights. The managing member will not have any voting or consent rights in respect of its membership interest represented by the preferred units.
SELLING SECURITY HOLDERS
Information about any 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 that are incorporated by reference.
UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of certain material U.S. federal income tax considerations regarding our election to be taxed as a REIT and the purchase, ownership and disposition of our capital stock or the operating company’s debt securities. Supplemental U.S. federal income tax considerations relevant to holders of the securities offered by this prospectus (including warrants, preferred stock and depositary shares and other debt securities) may be provided in the prospectus supplement or a free writing prospectus that relates to those securities or a document incorporated by reference in the prospectus supplement. For purposes of this discussion, references to “we,” “our” and “us” mean only Healthpeak Properties, Inc. and do not include any of its subsidiaries, except as otherwise indicated. This summary is for general information only and is not tax advice. The information in this summary is based on:
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the Code;
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current, temporary and proposed Treasury regulations promulgated under the Code (the “Treasury Regulations”);
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the legislative history of the Code;
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administrative interpretations and practices of the Internal Revenue Service (the “IRS”); and
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court decisions;
in each case, as of the date of this prospectus. In addition, the administrative interpretations and practices of the IRS include its practices and policies as expressed in private letter rulings that are not binding on the IRS except with respect to the particular taxpayers who requested and received those rulings. The sections of the Code and the corresponding Treasury Regulations that relate to qualification and taxation as a REIT are highly technical and complex. The following discussion sets forth certain material aspects of the sections of the Code that govern the U.S. federal income tax treatment of a REIT, its stockholders, and holders of the operating company’s debt securities. This summary is qualified in its entirety by the applicable Code provisions, Treasury Regulations promulgated under the Code, and administrative and judicial interpretations thereof. Potential tax reforms may result in significant changes to the rules governing U.S. federal income taxation. New legislation, Treasury Regulations, administrative interpretations and practices and/or court decisions may significantly and adversely affect our ability to qualify as a REIT, the U.S. federal income tax consequences of such qualification, or the U.S. federal income tax consequences of an investment in us, including those described in this discussion. Moreover, the law relating to the tax treatment of other entities, or an investment in other entities, could change, making an investment in such other entities more attractive relative to an investment in a REIT. Any such changes could apply retroactively to transactions preceding the date of the change. We have not requested, and do not plan to request, any rulings from the IRS that we qualify as a REIT, and the statements in this prospectus are not binding on the IRS or any court. Thus, we can provide no assurance that the tax considerations contained in this discussion will not be challenged by the IRS or will be sustained by a court if challenged by the IRS. This summary does not discuss any state, local or non-U.S. tax consequences, or any tax consequences arising under any U.S. federal tax laws other than U.S. federal income tax laws, associated with the purchase, ownership or disposition of our capital stock or the operating company’s debt securities, or our election to be taxed as a REIT.
You are urged to consult your tax advisor regarding the tax consequences to you of:
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the purchase, ownership and disposition of our capital stock and the operating company’s debt securities, including the U.S. federal, state, local, non-U.S. and other tax consequences;
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our election to be taxed as a REIT for U.S. federal income tax purposes; and
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potential changes in applicable tax laws.
Taxation of Our Company
General. Prior to the Reorganization, whereby Old Healthpeak became a wholly owned subsidiary of Healthpeak in a transaction intended to qualify as a reorganization under section 368(a)(1)(F) of the Code, Old Healthpeak was known as Healthpeak Properties, Inc. and Healthpeak was known as New Healthpeak, Inc. In connection with the Reorganization, Old Healthpeak became a “qualified REIT subsidiary” of
Healthpeak and Healthpeak changed its name to Healthpeak Properties, Inc. Old Healthpeak then converted into a Delaware limited liability company and changed its name to Healthpeak OP, LLC. Prior to the Reorganization, Old Healthpeak elected to be taxed as a REIT and was organized and operated in a manner intended to qualify as a REIT. As a result of the Reorganization, Healthpeak is treated as a continuation of Old Healthpeak for U.S. federal income tax purposes. Accordingly, references in this summary to “us,” “we,” or “our” include Old Healthpeak in its capacity as a REIT prior to the Reorganization, to the extent the context contemplates periods prior to the Reorganization.
We have elected to be taxed as a REIT under Sections 856 through 860 of the Code commencing with our initial taxable year ended December 31, 1985. We believe that we have been organized and have operated in a manner that has allowed us to qualify for taxation as a REIT under the Code commencing with such taxable year, and we intend to continue to be organized and operate in this manner. However, qualification and taxation as a REIT depend upon our ability to meet the various qualification tests imposed under the Code, including through actual operating results, asset composition, distribution levels and diversity of stock ownership. Accordingly, no assurance can be given that we have been organized and have operated, or will continue to be organized and operate, in a manner so as to qualify or remain qualified as a REIT. See “— Failure to Qualify” for potential tax consequences if we fail to qualify as a REIT.
Latham & Watkins LLP has acted as our tax counsel in connection with this prospectus and our election to be taxed as a REIT. Latham & Watkins LLP has rendered an opinion to us, as of the date of this prospectus, to the effect that, commencing with our taxable year ended December 31, 2015, we have been organized and have operated in conformity with the requirements for qualification and taxation as a REIT under the Code, and our proposed method of operation will enable us to continue to meet the requirements for qualification and taxation as a REIT under the Code. It must be emphasized that this opinion was based on various assumptions and representations as to factual matters, including representations made by us in a factual certificate provided by one or more of our officers. In addition, this opinion was based upon our factual representations set forth in this prospectus. Moreover, our qualification and taxation as a REIT depend upon our ability to meet the various qualification tests imposed under the Code, which are discussed below, including through actual operating results, asset composition, distribution levels and diversity of stock ownership, the results of which have not been and will not be reviewed by Latham & Watkins LLP. Accordingly, no assurance can be given that our actual results of operations for any particular taxable year have satisfied or will satisfy those requirements. Further, the anticipated U.S. federal income tax treatment described herein may be changed, perhaps retroactively, by legislative, administrative or judicial action at any time. Latham & Watkins LLP has no obligation to update its opinion subsequent to the date of such opinion.
Provided we qualify for taxation as a REIT, we generally will not be required to pay U.S. federal corporate income taxes on our REIT taxable income that is currently distributed to our stockholders. This treatment substantially eliminates the “double taxation” that ordinarily results from investment in a C corporation. A C corporation is a corporation that generally is required to pay tax at the corporate level. Double taxation means taxation once at the corporate level when income is earned and once again at the stockholder level when the income is distributed. We will, however, be required to pay U.S. federal income tax as follows:
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First, we will be required to pay regular U.S. federal corporate income tax on any undistributed REIT taxable income, including undistributed capital gain.
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Second, if we have (1) net income from the sale or other disposition of “foreclosure property” held primarily for sale to customers in the ordinary course of business or (2) other nonqualifying income from foreclosure property, we will be required to pay regular U.S. federal corporate income tax on this income. To the extent that income from foreclosure property is otherwise qualifying income for purposes of the 75% gross income test, this tax is not applicable. Subject to certain other requirements, foreclosure property generally is defined as property we acquired through foreclosure or after a default on a loan secured by the property or a lease of the property. See “— Foreclosure Property.”
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Third, we will be required to pay a 100% tax on any net income from prohibited transactions. Prohibited transactions are, in general, sales or other taxable dispositions of property, other than foreclosure property, held as inventory or primarily for sale to customers in the ordinary course of business.
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Fourth, if we fail to satisfy the 75% gross income test or the 95% gross income test, as described below, but have otherwise maintained our qualification as a REIT because certain other requirements are met, we will be required to pay a tax equal to (1) the greater of (A) the amount by which we fail to satisfy the 75% gross income test and (B) the amount by which we fail to satisfy the 95% gross income test, multiplied by (2) a fraction intended to reflect our profitability.
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Fifth, if we fail to satisfy any of the asset tests (other than a de minimis failure of the 5% or 10% asset test), as described below, due to reasonable cause and not due to willful neglect, and we nonetheless maintain our REIT qualification because of specified cure provisions, we will be required to pay a tax equal to the greater of $50,000 or the U.S. federal corporate income tax rate multiplied by the net income generated by the nonqualifying assets that caused us to fail such test.
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Sixth, if we fail to satisfy any provision of the Code that would result in our failure to qualify as a REIT (other than a violation of the gross income tests or certain violations of the asset tests, as described below) and the violation is due to reasonable cause and not due to willful neglect, we may retain our REIT qualification but we will be required to pay a penalty of $50,000 for each such failure.
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Seventh, we will be required to pay a 4% excise tax to the extent we fail to distribute during each calendar year at least the sum of (1) 85% of our ordinary income for the year, (2) 95% of our capital gain net income for the year, and (3) any undistributed taxable income from prior periods.
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Eighth, if we acquire any asset from a corporation that is or has been a C corporation in a transaction in which our tax basis in the asset is less than the fair market value of the asset, in each case determined as of the date on which we acquired the asset, and we subsequently recognize gain on the disposition of the asset during the five-year period beginning on the date on which we acquired the asset, then we generally will be required to pay regular U.S. federal corporate income tax on this gain to the extent of the excess of (1) the fair market value of the asset over (2) our adjusted tax basis in the asset, in each case determined as of the date on which we acquired the asset. The results described in this paragraph with respect to the recognition of gain assume that the C corporation will refrain from making an election to receive different treatment under applicable Treasury Regulations on its tax return for the year in which we acquire the asset from the C corporation. Under applicable Treasury Regulations, any gain from the sale of property we acquired in an exchange under Section 1031 (a like-kind exchange) or Section 1033 (an involuntary conversion) of the Code generally is excluded from the application of this built-in gains tax.
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Ninth, our subsidiaries that are C corporations and are not qualified REIT subsidiaries, including our “taxable REIT subsidiaries” described below, generally will be required to pay regular U.S. federal corporate income tax on their earnings.
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Tenth, we will be required to pay a 100% tax on any “redetermined rents,” “redetermined deductions,” “excess interest” or “redetermined TRS service income,” as described below under “— Penalty Tax.” In general, redetermined rents are rents from real property that are overstated as a result of services furnished to any of our tenants by a taxable REIT subsidiary of ours. Redetermined deductions and excess interest generally represent amounts that are deducted by a taxable REIT subsidiary of ours for amounts paid to us that are in excess of the amounts that would have been deducted based on arm’s length negotiations. Redetermined TRS service income generally represents income of a taxable REIT subsidiary that is understated as a result of services provided to us or on our behalf.
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Eleventh, we may elect to retain and pay income tax on our net capital gain. In that case, a stockholder would include its proportionate share of our undistributed capital gain (to the extent we make a timely designation of such gain to the stockholder) in its income, would be deemed to have paid the tax that we paid on such gain, and would be allowed a credit for its proportionate share of the tax deemed to have been paid, and an adjustment would be made to increase the tax basis of the stockholder in our capital stock.
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Twelfth, if we fail to comply with the requirement to send annual letters to our stockholders holding at least a certain percentage of our stock, as determined under applicable Treasury Regulations, requesting information regarding the actual ownership of our stock, and the failure is not due to
reasonable cause or is due to willful neglect, we will be subject to a $25,000 penalty, or if the failure is intentional, a $50,000 penalty.
We and our subsidiaries may be subject to a variety of taxes other than U.S. federal income tax, including payroll taxes and state and local income, property and other taxes on our assets and operations.
From time to time, we may own properties in other countries, which may impose taxes on our operations within their jurisdictions. To the extent possible, we will structure our activities to minimize our non-U.S. tax liability. However, there can be no assurance that we will be able to eliminate our non-U.S. tax liability or reduce it to a specified level. Furthermore, as a REIT, both we and our stockholders will derive little or no benefit from foreign tax credits arising from those non-U.S. taxes.
Requirements for Qualification as a REIT. The Code defines a REIT as a corporation, trust or association:
(1)
that is managed by one or more trustees or directors;
(2)
that issues transferable shares or transferable certificates to evidence its beneficial ownership;
(3)
that would be taxable as a domestic corporation, but for Sections 856 through 860 of the Code;
(4)
that is not a financial institution or an insurance company within the meaning of certain provisions of the Code;
(5)
that is beneficially owned by 100 or more persons;
(6)
not more than 50% in value of the outstanding stock of which is owned, actually or constructively, by five or fewer individuals, including certain specified entities, during the last half of each taxable year; and
(7)
that meets other tests, described below, regarding the nature of its income and assets and the amount of its distributions.
The Code provides that conditions (1) to (4), inclusive, must be met during the entire taxable year and that condition (5) must be met during at least 335 days of a taxable year of 12 months, or during a proportionate part of a taxable year of less than 12 months. Conditions (5) and (6) do not apply until after the first taxable year for which an election is made to be taxed as a REIT. For purposes of condition (6), the term “individual” includes a supplemental unemployment compensation benefit plan, a private foundation or a portion of a trust permanently set aside or used exclusively for charitable purposes, but generally does not include a qualified pension plan or profit sharing trust.
We believe that we have been organized and have operated in a manner that has allowed us, and will continue to allow us, to satisfy conditions (1) through (7), inclusive, during the relevant time periods. In addition, our charter provides for restrictions regarding ownership and transfer of our shares that are intended to assist us in continuing to satisfy the share ownership requirements described in conditions (5) and (6) above. A description of the share ownership and transfer restrictions relating to our capital stock is contained in the discussion in this prospectus under the headings “Description of Capital Stock — Transfer and Ownership Restrictions Relating to Our Common Stock” and “Description of Capital Stock — Transfer and Ownership Restrictions Relating to Our Preferred Stock.” These restrictions, however, do not ensure that we have previously satisfied, and may not ensure that we will, in all cases, be able to continue to satisfy, the share ownership requirements described in conditions (5) and (6) above. If we fail to satisfy these share ownership requirements, then except as provided in the next sentence, our status as a REIT will terminate. If, however, we comply with the rules contained in applicable Treasury Regulations that require us to ascertain the actual ownership of our shares and we do not know, or would not have known through the exercise of reasonable diligence, that we failed to meet the requirement described in condition (6) above, we will be treated as having met this requirement. See “— Failure to Qualify.”
In addition, we may not maintain our status as a REIT unless our taxable year is the calendar year. We have and will continue to have a calendar taxable year.
Ownership of Interests in Partnerships, Limited Liability Companies and Qualified REIT Subsidiaries. In the case of a REIT that is a partner in a partnership (for purposes of this discussion, references to “partnership” include a limited liability company treated as a partnership for U.S. federal income tax purposes, and references to “partner” include a member in such a limited liability company), Treasury Regulations provide that the REIT will be deemed to own its proportionate share of the assets of the partnership based on its interest in partnership capital, subject to special rules relating to the 10% asset test described below. Also, the REIT will be deemed to be entitled to its proportionate share of the income of that entity. The assets and gross income of the partnership retain the same character in the hands of the REIT for purposes of Section 856 of the Code, including satisfying the gross income tests and the asset tests. Thus, our pro rata share of the assets and items of income of any partnership or disregarded entity for U.S. federal income tax purposes in which we own an interest is treated as our assets and items of income for purposes of applying the requirements described in this discussion, including the gross income and asset tests described below. A brief summary of the rules governing the U.S. federal income taxation of partnerships is set forth below in “— Tax Aspects of the Operating Company, the Subsidiary Partnerships and the Limited Liability Companies.”
We generally have control of the operating company and the subsidiary partnerships and intend to operate them in a manner consistent with the requirements for our qualification as a REIT. If we become a limited partner or non-managing member in any partnership and such entity takes or expects to take actions that could jeopardize our status as a REIT or require us to pay tax, we may be forced to dispose of our interest in such entity. In addition, it is possible that a partnership could take an action which could cause us to fail a gross income or asset test, and that we would not become aware of such action in time to dispose of our interest in the partnership or take other corrective action on a timely basis. In such a case, we could fail to qualify as a REIT unless we were entitled to relief, as described below.
We may from time to time own and operate certain properties through wholly owned subsidiaries that we intend to be treated as “qualified REIT subsidiaries” under the Code. A corporation (or other entity treated as a corporation for U.S. federal income tax purposes) will qualify as our qualified REIT subsidiary if we own 100% of the corporation’s outstanding stock and do not elect with the subsidiary to treat it as a “taxable REIT subsidiary,” as described below. A qualified REIT subsidiary is not treated as a separate corporation, and all assets, liabilities and items of income, gain, loss, deduction and credit of a qualified REIT subsidiary are treated as assets, liabilities and items of income, gain, loss, deduction and credit of the parent REIT for all purposes under the Code, including all REIT qualification tests. Thus, in applying the U.S. federal income tax requirements described in this discussion, any qualified REIT subsidiaries we own are ignored, and all assets, liabilities and items of income, gain, loss, deduction and credit of such corporations are treated as our assets, liabilities and items of income, gain, loss, deduction and credit. A qualified REIT subsidiary is not subject to U.S. federal income tax, and our ownership of the stock of a qualified REIT subsidiary will not violate the restrictions on ownership of securities, as described below under “— Asset Tests.”
Ownership of Interests in Taxable REIT Subsidiaries. We and the operating company own interests in companies that have elected, together with us, to be treated as our taxable REIT subsidiaries, and we may acquire securities in additional taxable REIT subsidiaries in the future. A taxable REIT subsidiary is a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) other than a REIT in which a REIT directly or indirectly holds stock, and that has made a joint election with such REIT to be treated as a taxable REIT subsidiary. If a taxable REIT subsidiary owns more than 35% of the total voting power or value of the outstanding securities of another corporation, such other corporation will also be treated as a taxable REIT subsidiary. Other than directly or indirectly operating or managing a lodging or healthcare facility, or directly or indirectly providing to any other person (under a franchise, license or otherwise) rights to any brand name under which any lodging or healthcare facility is operated, a taxable REIT subsidiary may generally engage in any business, including the provision of customary or non-customary services to tenants of its parent REIT. A taxable REIT subsidiary is subject to U.S. federal income tax as a regular C corporation. A REIT is not treated as holding the assets of a taxable REIT subsidiary or as receiving any income that the taxable REIT subsidiary earns. Rather, the stock issued by the taxable REIT subsidiary is an asset in the hands of the REIT, and the REIT generally recognizes as income the dividends, if any, that it receives from the taxable REIT subsidiary. A REIT’s ownership of securities of a taxable REIT subsidiary is not subject to the 5% or 10% asset test described below. See
“— Asset Tests.” Taxpayers are subject to a limitation on their ability to deduct net business interest generally equal to 30% of adjusted taxable income, subject to certain exceptions. For any taxable year beginning in 2019 or 2020, the 30% limitation has been increased to a 50% limitation, provided that for partnerships the 50% limitation applies for any taxable year beginning in 2020 only. Taxpayers may elect to use their 2019 adjusted taxable income for purposes of computing their 2020 limitation. See “— Annual Distribution Requirements.” While not certain, this provision may limit the ability of our taxable REIT subsidiaries to deduct interest, which could increase their taxable income.
Ownership of Interests in Subsidiary REITs. We own and may acquire direct or indirect interests in one or more entities that have elected or will elect to be taxed as REITs under the Code (each, a “Subsidiary REIT”). A Subsidiary REIT is subject to the various REIT qualification requirements and other limitations described herein that are applicable to us. If a Subsidiary REIT were to fail to qualify as a REIT, then (i) that Subsidiary REIT would become subject to U.S. federal income tax and (ii) the Subsidiary REIT’s failure to qualify could have an adverse effect on our ability to comply with the REIT income and asset tests, and thus could impair our ability to qualify as a REIT unless we could avail ourselves of certain relief provisions.
Income Tests. We must satisfy two gross income requirements annually to maintain our qualification as a REIT. First, in each taxable year we must derive directly or indirectly at least 75% of our gross income (excluding gross income from prohibited transactions, certain hedging transactions and certain foreign currency gains) from investments relating to real property or mortgages on real property, including “rents from real property,” dividends from other REITs and, in certain circumstances, interest, or certain types of temporary investments. Second, in each taxable year we must derive at least 95% of our gross income (excluding gross income from prohibited transactions, certain hedging transactions and certain foreign currency gains) from the real property investments described above or dividends, interest and gain from the sale or disposition of stock or securities, or from any combination of the foregoing. For these purposes, the term “interest” generally does not include any amount received or accrued, directly or indirectly, if the determination of all or some of the amount depends in any way on the income or profits of any person. However, an amount received or accrued generally will not be excluded from the term “interest” solely by reason of being based on a fixed percentage or percentages of receipts or sales.
Rents we receive from a tenant will qualify as “rents from real property” for the purpose of satisfying the gross income requirements for a REIT described above only if all of the following conditions are met:
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The amount of rent is not based in whole or in part on the income or profits of any person. However, an amount we receive or accrue generally will not be excluded from the term “rents from real property” solely because it is based on a fixed percentage or percentages of receipts or sales or if it is based on the net income of a tenant which derives substantially all of its income with respect to such property from subleasing of substantially all of such property, to the extent that the rents paid by the subtenants would qualify as rents from real property if we earned such amounts directly;
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Neither we nor an actual or constructive owner of 10% or more of our capital stock actually or constructively owns 10% or more of the interests in the assets or net profits of a non-corporate tenant, or, if the tenant is a corporation, 10% or more of the total combined voting power of all classes of stock entitled to vote or 10% or more of the total value of all classes of stock of the tenant. Rents we receive from such a tenant that is a taxable REIT subsidiary of ours, however, will not be excluded from the definition of “rents from real property” as a result of this condition if at least 90% of the space at the property to which the rents relate is leased to third parties, and the rents paid by the taxable REIT subsidiary are substantially comparable to rents paid by our other tenants for comparable space. Whether rents paid by a taxable REIT subsidiary are substantially comparable to rents paid by other tenants is determined at the time the lease with the taxable REIT subsidiary is entered into, extended, and modified, if such modification increases the rents due under such lease. Notwithstanding the foregoing, however, if a lease with a “controlled taxable REIT subsidiary” is modified and such modification results in an increase in the rents payable by such taxable REIT subsidiary, any such increase will not qualify as “rents from real property.” For purposes of this rule, a “controlled taxable REIT subsidiary” is a taxable REIT subsidiary in which the parent REIT owns stock possessing more than 50% of the voting power or more than 50% of the total value of the outstanding stock of such taxable REIT subsidiary;
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Rent attributable to personal property, leased in connection with a lease of real property, is not greater than 15% of the total rent received under the lease. If this condition is not met, then the portion of the rent attributable to personal property will not qualify as “rents from real property.” To the extent that rent attributable to personal property, leased in connection with a lease of real property, exceeds 15% of the total rent received under the lease, we may transfer a portion of such personal property to a taxable REIT subsidiary; and
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We generally may not operate or manage the property or furnish or render services to our tenants, subject to a 1% de minimis exception and except as provided below. We may, however, perform services that are “usually or customarily rendered” in connection with the rental of space for occupancy only and are not otherwise considered “rendered to the occupant” of the property. Examples of these services include the provision of light, heat, or other utilities, trash removal and general maintenance of common areas. In addition, we may employ an independent contractor from whom we derive no revenue to provide customary services to our tenants, or a taxable REIT subsidiary (which may be wholly or partially owned by us) to provide both customary and non-customary services to our tenants, without causing the rent we receive from those tenants to fail to qualify as “rents from real property.”
A portion of our rental income is derived from leases of health care properties to our taxable REIT subsidiaries. In order for the rent payable under each of these leases to constitute “rents from real property,” each lease must be respected as a true lease for U.S. federal income tax purposes and must not be treated as a service contract, joint venture, or some other type of arrangement. We believe that each such lease is a true lease for U.S. federal income tax purposes. However, this determination is inherently a question of fact, and we cannot assure you that the IRS will not successfully assert a contrary position. If any lease is not respected as a true lease, part or all of the payments that we receive as rent from our taxable REIT subsidiary with respect to such lease may not be considered rent or may not otherwise satisfy the various requirements for qualification as “rents from real property.” In that case, we may not be able to satisfy either the 75% or 95% gross income test and, as a result, could fail to qualify as a REIT.
Also, our taxable REIT subsidiaries may not operate or manage a health care property or provide rights to any brand name under which any health care property is operated. However, rents we receive from a lease of a health care property to our taxable REIT subsidiary will constitute “rents from real property” if the following conditions are satisfied:
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First, the health care property must be a “qualified health care property.” A qualified health care property is any real property (including interests therein), and any personal property incident to such real property, which is (or is necessary or incidental to the use of) a hospital, nursing facility, assisted living facility, congregate care facility, qualified continuing care facility, or other licensed facility which extends medical or nursing or ancillary services to patients and which is operated by a provider of such services which is eligible for participation in Medicare with respect to such facility; and
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Second, the health care property must be managed by an “eligible independent contractor.” An eligible independent contractor is an independent contractor that, at the time the management contract is entered into, is actively engaged in the trade or business of operating qualified health care properties for any person not related to us or any of our taxable REIT subsidiaries. For this purpose, an independent contractor means any person (i) that does not own (taking into account relevant attribution rules) more than 35% of our capital stock, and (ii) with respect to which no person or group owning directly or indirectly (taking into account relevant attribution rules) 35% or more of our capital stock owns 35% or more directly or indirectly (taking into account relevant attribution rules) of the ownership interest.
We believe each health care property that we lease to our taxable REIT subsidiaries is a qualified health care property, and each health care property manager engaged by our taxable REIT subsidiaries to manage each health care property is an eligible independent contractor. Furthermore, while we will monitor the activities of the eligible independent contractors to maximize the value of our health care property investments, neither we nor our taxable REIT subsidiary lessees will directly or indirectly operate or manage our health care properties. Thus, we believe that the rents we derive from our taxable REIT subsidiaries with respect to the leases of our health care properties will qualify as “rents from real property.”
We generally do not intend, and, as managing member of the operating company, we do not intend to permit the operating company, to take actions we believe will cause us to fail to satisfy the rental conditions described above. However, we may intentionally fail to satisfy some of these conditions to the extent we determine, based on the advice of our tax counsel, that the failure will not jeopardize our tax status as a REIT. In addition, with respect to the limitation on the rental of personal property, we generally have not obtained appraisals of the real property and personal property leased to tenants. Accordingly, there can be no assurance that the IRS will not disagree with our determinations of value.
Income we receive that is attributable to the rental of parking spaces at the properties generally will constitute rents from real property for purposes of the gross income tests if certain services provided with respect to the parking spaces are performed by independent contractors from whom we derive no revenue, either directly or indirectly, or by a taxable REIT subsidiary, and certain other conditions are met. We believe that the income we receive that is attributable to parking spaces will meet these tests and, accordingly, will constitute rents from real property for purposes of the gross income tests.
From time to time, we may enter into hedging transactions with respect to one or more of our assets or liabilities. Our hedging activities may include entering into interest rate swaps, caps, and floors, options to purchase these items, and futures and forward contracts. Income from a hedging transaction, including gain from the sale or disposition of such a transaction, that is clearly identified as a hedging transaction as specified in the Code will not constitute gross income under, and thus will be exempt from, the 75% and 95% gross income tests. The term “hedging transaction,” as used above, generally means (A) any transaction we enter into in the normal course of our business primarily to manage risk of (1) interest rate changes or fluctuations with respect to borrowings made or to be made by us to acquire or carry real estate assets, or (2) currency fluctuations with respect to an item of qualifying income under the 75% or 95% gross income test or any property which generates such income and (B) new transactions entered into to hedge the income or loss from prior hedging transactions, where the property or indebtedness which was the subject of the prior hedging transaction was extinguished or disposed of. To the extent that we do not properly identify such transactions as hedges or we hedge with other types of financial instruments, the income from those transactions is not likely to be treated as qualifying income for purposes of the gross income tests. We intend to structure any hedging transactions in a manner that does not jeopardize our status as a REIT.
From time to time may invest in additional entities or properties located outside the United States, through a taxable REIT subsidiary or otherwise. These acquisitions could cause us to incur foreign currency gains or losses. Any foreign currency gains, to the extent attributable to specified items of qualifying income or gain, or specified qualifying assets, however, generally will not constitute gross income for purposes of the 75% and 95% gross income tests, and therefore will be excluded from these tests.
To the extent our taxable REIT subsidiaries pay dividends or interest, our allocable share of such dividend or interest income will qualify under the 95%, but not the 75%, gross income test (except that our allocable share of such interest would also qualify under the 75% gross income test to the extent the interest is paid on a loan that is adequately secured by real property).
We will monitor the amount of the dividend and other income from our taxable REIT subsidiaries and will take actions intended to keep this income, and any other nonqualifying income, within the limitations of the gross income tests. Although we expect these actions will be sufficient to prevent a violation of the gross income tests, we cannot guarantee that such actions will in all cases prevent such a violation.
If we fail to satisfy one or both of the 75% or 95% gross income tests for any taxable year, we may nevertheless qualify as a REIT for the year if we are entitled to relief under certain provisions of the Code. We generally may make use of the relief provisions if:
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following our identification of the failure to meet the 75% or 95% gross income tests for any taxable year, we file a schedule with the IRS setting forth each item of our gross income for purposes of the 75% or 95% gross income tests for such taxable year in accordance with Treasury Regulations to be issued; and
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our failure to meet these tests was due to reasonable cause and not due to willful neglect.
It is not possible, however, to state whether in all circumstances we would be entitled to the benefit of these relief provisions. For example, if we fail to satisfy the gross income tests because nonqualifying income
that we intentionally accrue or receive exceeds the limits on nonqualifying income, the IRS could conclude that our failure to satisfy the tests was not due to reasonable cause. If these relief provisions do not apply to a particular set of circumstances, we will not qualify as a REIT. See “— Failure to Qualify” below. As discussed above in “— General,” even if these relief provisions apply, and we retain our status as a REIT, a tax would be imposed with respect to our nonqualifying income. We may not always be able to comply with the gross income tests for REIT qualification despite periodic monitoring of our income.
Prohibited Transaction Income. Any gain that we realize on the sale of property (other than any foreclosure property) held as inventory or otherwise held primarily for sale to customers in the ordinary course of business, including our share of any such gain realized by the operating company, either directly or through its subsidiary partnerships, will be treated as income from a prohibited transaction that is subject to a 100% penalty tax, unless certain safe harbor exceptions apply. This prohibited transaction income may also adversely affect our ability to satisfy the gross income tests for qualification as a REIT. Under existing law, whether property is held as inventory or primarily for sale to customers in the ordinary course of a trade or business is a question of fact that depends on all the facts and circumstances surrounding the particular transaction. As the managing member of the operating company, we intend to cause the operating company to hold its properties for investment with a view to long-term appreciation, to engage in the business of acquiring, developing and owning its properties and to make occasional sales of the properties as are consistent with our investment objectives. We do not intend, and do not intend to permit the operating company or its subsidiary partnerships, to enter into any sales that are prohibited transactions. However, the IRS may successfully contend that some or all of the sales made by the operating company or its subsidiary partnerships are prohibited transactions. We would be required to pay the 100% penalty tax on our allocable share of the gains resulting from any such sales. The 100% penalty tax will not apply to gains from the sale of assets that are held through a taxable REIT subsidiary, but such income will be subject to regular U.S. federal corporate income tax.
Penalty Tax. Any redetermined rents, redetermined deductions, excess interest or redetermined TRS service income we generate will be subject to a 100% penalty tax. In general, redetermined rents are rents from real property that are overstated as a result of any services furnished to any of our tenants by a taxable REIT subsidiary of ours, redetermined deductions and excess interest represent any amounts that are deducted by a taxable REIT subsidiary of ours for amounts paid to us that are in excess of the amounts that would have been deducted based on arm’s length negotiations, and redetermined TRS service income is income of a taxable REIT subsidiary that is understated as a result of services provided to us or on our behalf. Rents we receive will not constitute redetermined rents if they qualify for certain safe harbor provisions contained in the Code.
We do not believe we have been, and do not expect to be, subject to this penalty tax, although any rental or service arrangements we enter into from time to time may not satisfy the safe-harbor provisions referenced above. These determinations are inherently factual, and the IRS has broad discretion to assert that amounts paid between related parties should be reallocated to clearly reflect their respective incomes. If the IRS successfully made such an assertion, we would be required to pay a 100% penalty tax on any overstated rents paid to us, or any excess deductions or understated income of our taxable REIT subsidiaries.
Currently, certain of our taxable REIT subsidiaries provide services to certain of our tenants and may pay us rent and, from time to time, we may enter into additional leases or arrangements with our taxable REIT subsidiaries to provide services to our tenants. We believe we have set, and we intend to set in the future, any fees paid to our taxable REIT subsidiaries for such services, and any rent payable to us by our taxable REIT subsidiaries, at arm’s length rates, although the amounts paid may not satisfy the safe-harbor provisions referenced above. These determinations are inherently factual, and the IRS has broad discretion to assert that amounts paid between related parties should be reallocated to clearly reflect their respective incomes. If the IRS successfully made such an assertion, we would be required to pay a 100% penalty tax on any overstated rents paid to us, or any excess deductions or understated income of our taxable REIT subsidiaries.
Asset Tests. At the close of each calendar quarter of our taxable year, we must also satisfy certain tests relating to the nature and diversification of our assets. First, at least 75% of the value of our total assets must be represented by real estate assets, cash, cash items and U.S. government securities. For purposes of this test, the term “real estate assets” generally means real property (including interests in real property and interests in mortgages on real property or on both real property and, to a limited extent, personal
property), shares (or transferable certificates of beneficial interest) in other REITs, any stock or debt instrument attributable to the investment of the proceeds of a stock offering or a public offering of debt with a term of at least five years (but only for the one-year period beginning on the date the REIT receives such proceeds), debt instruments of publicly offered REITs, and personal property leased in connection with a lease of real property for which the rent attributable to personal property is not greater than 15% of the total rent received under the lease.
Second, not more than 25% of the value of our total assets may be represented by securities (including securities of taxable REIT subsidiaries), other than those securities includable in the 75% asset test.
Third, of the investments included in the 25% asset class, and except for certain investments in other REITs, our qualified REIT subsidiaries and taxable REIT subsidiaries, the value of any one issuer’s securities may not exceed 5% of the value of our total assets, and we may not own more than 10% of the total vote or value of the outstanding securities of any one issuer. Certain types of securities we may own are disregarded as securities solely for purposes of the 10% value test, including, but not limited to, securities satisfying the “straight debt” safe harbor, securities issued by a partnership that itself would satisfy the 75% income test if it were a REIT, any loan to an individual or an estate, any obligation to pay rents from real property and any security issued by a REIT. In addition, solely for purposes of the 10% value test, the determination of our interest in the assets of a partnership in which we own an interest will be based on our proportionate interest in any securities issued by the partnership, excluding for this purpose certain securities described in the Code. From time to time we may own securities (including debt securities) of issuers that do not qualify as a REIT, a qualified REIT subsidiary or a taxable REIT subsidiary. We intend that our ownership of any such securities will be structured in a manner that allows us to comply with the asset tests described above.
Fourth, not more than 20% (25% for taxable years beginning after July 30, 2008 and before January 1, 2018) of the value of our total assets may be represented by the securities of one or more taxable REIT subsidiaries. We and the operating company own interests in companies that have elected, together with us, to be treated as our taxable REIT subsidiaries, and we may acquire securities in additional taxable REIT subsidiaries in the future. So long as each of these companies qualifies as a taxable REIT subsidiary of ours, we will not be subject to the 5% asset test, the 10% voting securities limitation or the 10% value limitation with respect to our ownership of the securities of such companies. We believe that the aggregate value of our taxable REIT subsidiaries has not exceeded, and in the future will not exceed, 20% (25% for taxable years beginning after July 30, 2008 and before January 1, 2018) of the aggregate value of our gross assets. We generally do not obtain independent appraisals to support these conclusions. In addition, there can be no assurance that the IRS will not disagree with our determinations of value.
Fifth, not more than 25% of the value of our total assets may be represented by debt instruments of publicly offered REITs to the extent those debt instruments would not be real estate assets but for the inclusion of debt instruments of publicly offered REITs in the meaning of real estate assets, as described above (e.g., a debt instrument issued by a publicly offered REIT that is not secured by a mortgage on real property).
In addition, we may acquire certain mezzanine loans secured by equity interests in pass-through entities that directly or indirectly own real property. Revenue Procedure 2003-65 (the “Revenue Procedure”) provides a safe harbor pursuant to which mezzanine loans meeting the requirements of the safe harbor will be treated by the IRS as real estate assets for purposes of the REIT asset tests. In addition, any interest derived from such mezzanine loans will be treated as qualifying mortgage interest for purposes of the 75% gross income test (described above). Although the Revenue Procedure provides a safe harbor on which taxpayers may rely, it does not prescribe rules of substantive tax law. The mezzanine loans that we acquire may not meet all of the requirements of the safe harbor. Accordingly, there can be no assurance that the IRS will not challenge the qualification of such assets as real estate assets or the interest generated by these loans as qualifying income under the 75% gross income test (described above).
The asset tests must be satisfied at the close of each calendar quarter of our taxable year in which we (directly or through any partnership or qualified REIT subsidiary) acquire securities in the applicable issuer, and also at the close of each calendar quarter in which we increase our ownership of securities of such issuer (including as a result of an increase in our interest in any partnership that owns such securities). For example, our indirect ownership of securities of each issuer will increase as a result of our capital contributions
to, or the redemption of other partners’ or members’ interests in, a partnership in which we have an ownership interest. Also, after initially meeting the asset tests at the close of any quarter, we will not lose our status as a REIT for failure to satisfy the asset tests at the end of a later quarter solely by reason of changes in asset values. If we fail to satisfy an asset test because we acquire securities or other property during a quarter (including as a result of an increase in our interest in any partnership), we may cure this failure by disposing of sufficient nonqualifying assets within 30 days after the close of that quarter. We believe that we have maintained, and we intend to maintain, adequate records of the value of our assets to ensure compliance with the asset tests. If we fail to cure any noncompliance with the asset tests within the 30-day cure period, we would cease to qualify as a REIT unless we are eligible for certain relief provisions discussed below.
Certain relief provisions may be available to us if we discover a failure to satisfy the asset tests described above after the 30-day cure period. Under these provisions, we will be deemed to have met the 5% and 10% asset tests if the value of our nonqualifying assets (i) does not exceed the lesser of (a) 1% of the total value of our assets at the end of the applicable quarter or (b) $10,000,000, and (ii) we dispose of the nonqualifying assets or otherwise satisfy such tests within (a) six months after the last day of the quarter in which the failure to satisfy the asset tests is discovered or (b) the period of time prescribed by Treasury Regulations to be issued. For violations of any of the asset tests due to reasonable cause and not due to willful neglect and that are, in the case of the 5% and 10% asset tests, in excess of the de minimis exception described above, we may avoid disqualification as a REIT after the 30-day cure period by taking steps including (i) the disposition of sufficient nonqualifying assets, or the taking of other actions, which allow us to meet the asset tests within (a) six months after the last day of the quarter in which the failure to satisfy the asset tests is discovered or (b) the period of time prescribed by Treasury Regulations to be issued, (ii) paying a tax equal to the greater of (a) $50,000 or (b) the U.S. federal corporate income tax rate multiplied by the net income generated by the nonqualifying assets, and (iii) disclosing certain information to the IRS.
Although we believe we have satisfied the asset tests described above and plan to take steps to ensure that we satisfy such tests for any quarter with respect to which retesting is to occur, there can be no assurance that we will always be successful, or will not require a reduction in the operating company’s overall interest in an issuer (including in a taxable REIT subsidiary). If we fail to cure any noncompliance with the asset tests in a timely manner, and the relief provisions described above are not available, we would cease to qualify as a REIT.
Annual Distribution Requirements. To maintain our qualification as a REIT, we are required to distribute dividends, other than capital gain dividends, to our stockholders each year in an amount at least equal to the sum of:
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90% of our REIT taxable income; and
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90% of our after-tax net income, if any, from foreclosure property; minus
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the excess of the sum of certain items of non-cash income over 5% of our REIT taxable income.
For these purposes, our REIT taxable income is computed without regard to the dividends paid deduction and our net capital gain. In addition, for purposes of this test, non-cash income generally means income attributable to leveled stepped rents, original issue discount, cancellation of indebtedness, or a like-kind exchange that is later determined to be taxable.
In addition, our REIT taxable income will be reduced by any taxes we are required to pay on any gain we recognize from the disposition of any asset we acquired from a corporation that is or has been a C corporation in a transaction in which our tax basis in the asset is less than the fair market value of the asset, in each case determined as of the date on which we acquired the asset, within the five-year period following our acquisition of such asset, as described above under “— General.”
Except as provided below, a taxpayer’s deduction for net business interest expense will generally be limited to 30% of its taxable income, as adjusted for certain items of income, gain, deduction or loss. For any taxable year beginning in 2019 or 2020, the 30% limitation has been increased to a 50% limitation, provided that for partnerships the 50% limitation applies for any taxable year beginning in 2020 only. Taxpayers may elect to use their 2019 adjusted taxable income for purposes of computing their 2020
limitation. Any business interest deduction that is disallowed due to this limitation may be carried forward to future taxable years, subject to special rules applicable to partnerships. If we or any of our subsidiary partnerships are subject to this interest expense limitation, our REIT taxable income for a taxable year may be increased. Taxpayers that conduct certain real estate businesses may elect not to have this interest expense limitation apply to them, provided that they use an alternative depreciation system to depreciate certain property. If such election is made, although we or such subsidiary partnership, as applicable, would not be subject to the interest expense limitation described above, depreciation deductions may be reduced and, as a result, our REIT taxable income for a taxable year may be increased.
We generally must pay, or be treated as paying, the distributions described above in the taxable year to which they relate. At our election, a distribution will be treated as paid in a taxable year if it is declared before we timely file our tax return for such year and paid on or before the first regular dividend payment after such declaration, provided such payment is made during the 12-month period following the close of such year. These distributions are treated as received by our stockholders in the year in which they are paid. This is so even though these distributions relate to the prior year for purposes of the 90% distribution requirement. In order to be taken into account for purposes of our distribution requirement, except as provided below, the amount distributed must not be preferential — i.e., every stockholder of the class of stock to which a distribution is made must be treated the same as every other stockholder of that class, and no class of stock may be treated other than according to its dividend rights as a class. This preferential dividend limitation will not apply to distributions made by us, provided we qualify as a “publicly offered REIT.” We believe that we are, and expect we will continue to be, a publicly offered REIT. However, Subsidiary REITs we may own from time to time may not be publicly offered REITs. To the extent that we do not distribute all of our net capital gain, or distribute at least 90%, but less than 100%, of our REIT taxable income, as adjusted, we will be required to pay regular U.S. federal corporate income tax on the undistributed amount. We believe that we have made, and we intend to continue to make, timely distributions sufficient to satisfy these annual distribution requirements and to minimize our corporate tax obligations. In this regard, the operating agreement of the operating company authorizes us, as the managing member of the operating company, to take such steps as may be necessary to cause the operating company to distribute to its partners an amount sufficient to permit us to meet these distribution requirements and to minimize our corporate tax obligation.
We expect that our REIT taxable income will be less than our cash flow because of depreciation and other non-cash charges included in computing REIT taxable income. Accordingly, we anticipate that we generally will have sufficient cash or liquid assets to enable us to satisfy the distribution requirements described above. However, from time to time, we may not have sufficient cash or other liquid assets to meet these distribution requirements due to timing differences between the actual receipt of income and actual payment of deductible expenses, and the inclusion of income and deduction of expenses in determining our taxable income. In addition, we may decide to retain our cash, rather than distribute it, in order to repay debt or for other reasons. If these timing differences occur, we may borrow funds to pay dividends or pay dividends in the form of taxable stock distributions in order to meet the distribution requirements, while preserving our cash.
Under some circumstances, we may be able to rectify an inadvertent failure to meet the 90% distribution requirement for a year by paying “deficiency dividends” to our stockholders in a later year, which may be included in our deduction for dividends paid for the earlier year. In that case, we may be able to avoid being taxed on amounts distributed as deficiency dividends, subject to the 4% excise tax described below. However, we will be required to pay interest to the IRS based upon the amount of any deduction claimed for deficiency dividends. While the payment of a deficiency dividend will apply to a prior year for purposes of our REIT distribution requirements, it will be treated as an additional distribution to our stockholders in the year such dividend is paid.
Furthermore, we will be required to pay a 4% excise tax to the extent we fail to distribute during each calendar year at least the sum of 85% of our ordinary income for such year, 95% of our capital gain net income for the year and any undistributed taxable income from prior periods. Any ordinary income and net capital gain on which U.S. federal corporate income tax is imposed for any year is treated as an amount distributed during that year for purposes of calculating this excise tax.
For purposes of the 90% distribution requirement and excise tax described above, dividends declared during the last three months of the taxable year, payable to stockholders of record on a specified date during
such period and paid during January of the following year, will be treated as paid by us and received by our stockholders on December 31 of the year in which they are declared.
Like-Kind Exchanges. We may dispose of real property that is not held primarily for sale in transactions intended to qualify as like-kind exchanges under the Code. Such like-kind exchanges are intended to result in the deferral of gain for U.S. federal income tax purposes. The failure of any such transaction to qualify as a like-kind exchange could require us to pay U.S. federal income tax, possibly including the 100% prohibited transaction tax, or deficiency dividends, depending on the facts and circumstances surrounding the particular transaction.
Tax Liabilities and Attributes Inherited in Connection with Acquisitions. From time to time, we or the operating company may acquire other corporations or entities and, in connection with such acquisitions, we may succeed to the historical tax attributes and liabilities of such entities. For example, if we acquire a C corporation and subsequently dispose of its assets within five years of the acquisition, we could be required to pay the built-in gain tax described above under “— General.” In addition, in order to qualify as a REIT, at the end of any taxable year, we must not have any earnings and profits accumulated in a non-REIT year. As a result, if we acquire a C corporation, we must distribute the corporation’s earnings and profits accumulated prior to the acquisition before the end of the taxable year in which we acquire the corporation. We also could be required to pay the acquired entity’s unpaid taxes even though such liabilities arose prior to the time we acquired the entity.
Moreover, we may from time to time acquire other REITs through a merger or acquisition. If any such REIT failed to qualify as a REIT for any of its taxable years, such REIT would be liable for (and we or our subsidiary, as the surviving corporation in the merger or acquisition, would be obligated to pay) regular U.S. federal corporate income tax on its taxable income for such taxable years. In addition, if such REIT was a C corporation at the time of the merger or acquisition, the tax consequences described in the preceding paragraph generally would apply. If such REIT failed to qualify as a REIT for any of its taxable years, but qualified as a REIT at the time of such merger or acquisition, and we acquired such REIT’s assets in a transaction in which our tax basis in the assets of such REIT is determined, in whole or in part, by reference to such REIT’s tax basis in such assets, we generally would be subject to tax on the built-in gain on each asset of such REIT as described above if we were to dispose of the asset in a taxable transaction during the five-year period following such REIT’s requalification as a REIT, subject to certain exceptions. Moreover, even if such REIT qualified as a REIT at all relevant times, we would similarly be liable for other unpaid taxes (if any) of such REIT (such as the 100% tax on gains from any sales treated as “prohibited transactions” as described above under “— Prohibited Transaction Income”).
Furthermore, after our acquisition of another corporation or entity, the asset and income tests will apply to all of our assets, including the assets we acquire from such corporation or entity, and to all of our income, including the income derived from the assets we acquire from such corporation or entity. As a result, the nature of the assets that we acquire from such corporation or entity and the income we derive from those assets may have an effect on our tax status as a REIT.
Foreclosure Property. The foreclosure property rules permit us (by our election) to foreclose or repossess properties without being disqualified as a REIT as a result of receiving income that does not qualify under the gross income tests. However, in such a case, we would be subject to the U.S. federal corporate income tax on the net non-qualifying income from “foreclosure property,” and the after-tax amount would increase the dividends we would be required to distribute to stockholders. See “— Annual Distribution Requirements.” This corporate tax would not apply to income that qualifies under the REIT 75% income test.
Foreclosure property treatment (other than for qualified health care property) is available for an initial period of three years and may, in certain circumstances, be extended for an additional three years. Foreclosure property treatment for qualified health care property is available for an initial period of two years and may, in certain circumstances, be extended for an additional four years. However, foreclosure property treatment will end on the first day on which we enter into a lease of the applicable property that will give rise to income that does not qualify under the REIT 75% income test, but will not end if the lease will give rise only to qualifying income under such test. Foreclosure property treatment also will end if any construction
takes place on the property (other than completion of a building or other improvement that was more than 10% complete before default became imminent).
Failure to Qualify. If we discover a violation of a provision of the Code that would result in our failure to qualify as a REIT, certain specified cure provisions may be available to us. Except with respect to violations of the gross income tests and asset tests (for which the cure provisions are described above), and provided the violation is due to reasonable cause and not due to willful neglect, these cure provisions generally impose a $50,000 penalty for each violation in lieu of a loss of REIT status. If we fail to satisfy the requirements for taxation as a REIT in any taxable year, and the relief provisions do not apply, we will be required to pay regular U.S. federal corporate income tax, including any applicable alternative minimum tax for taxable years beginning before January 1, 2018, on our taxable income. Distributions to stockholders in any year in which we fail to qualify as a REIT will not be deductible by us. As a result, we anticipate that our failure to qualify as a REIT would reduce the cash available for distribution by us to our stockholders. In addition, if we fail to qualify as a REIT, we will not be required to distribute any amounts to our stockholders and all distributions to stockholders will be taxable as regular corporate dividends to the extent of our current and accumulated earnings and profits. In such event, corporate stockholders may be eligible for the dividends-received deduction. In addition, non-corporate stockholders, including individuals, may be eligible for the preferential tax rates on qualified dividend income. Non-corporate stockholders, including individuals, generally may deduct up to 20% of dividends from a REIT, other than capital gain dividends and dividends treated as qualified dividend income, for taxable years beginning before January 1, 2026 for purposes of determining their U.S. federal income tax (but not for purposes of the 3.8% Medicare tax), subject to certain holding period requirements and other limitations. If we fail to qualify as a REIT, such stockholders may not claim this deduction with respect to dividends paid by us. Unless entitled to relief under specific statutory provisions, we would also be ineligible to elect to be treated as a REIT for the four taxable years following the year for which we lose our qualification. It is not possible to state whether in all circumstances we would be entitled to this statutory relief.
Tax Aspects of the Operating Company, the Subsidiary Partnerships and the Limited Liability Companies
General. All of our investments are held indirectly through the operating company. In addition, the operating company holds certain of its investments indirectly through subsidiary partnerships and limited liability companies that we believe are and will continue to be treated as partnerships or disregarded entities for U.S. federal income tax purposes. In general, entities that are treated as partnerships or disregarded entities for U.S. federal income tax purposes are “pass-through” entities which are not required to pay U.S. federal income tax. Rather, partners of such partnerships are allocated their shares of the items of income, gain, loss, deduction and credit of the partnership, and are potentially required to pay tax on this income, without regard to whether they receive a distribution from the partnership. We will include in our income our share of these partnership items for purposes of the various gross income tests, the computation of our REIT taxable income, and the REIT distribution requirements. Moreover, for purposes of the asset tests, we will include our pro rata share of assets held by these partnerships based on our capital interests in each such entity. See “— Taxation of Our Company — Ownership of Interests in Partnerships, Limited Liability Companies and Qualified REIT Subsidiaries.” A disregarded entity is not treated as a separate entity for U.S. federal income tax purposes, and all assets, liabilities and items of income, gain, loss, deduction and credit of a disregarded entity are treated as assets, liabilities and items of income, gain, loss, deduction and credit of its parent that is not a disregarded entity for all purposes under the Code, including all REIT qualification tests.
Entity Classification. Our interests in the operating company and the subsidiary partnerships and limited liability companies involve special tax considerations, including the possibility that the IRS might challenge the status of these entities as partnerships or disregarded entities for U.S. federal income tax purposes. For example, an entity that would otherwise be treated as a partnership for U.S. federal income tax purposes may nonetheless be taxable as a corporation if it is a “publicly traded partnership” and certain other requirements are met. A partnership would be treated as a publicly traded partnership if its interests are traded on an established securities market or are readily tradable on a secondary market or a substantial equivalent thereof, within the meaning of applicable Treasury Regulations. We do not anticipate that the operating company or any subsidiary partnership will be treated as a publicly traded partnership that is taxable as a corporation. However, if any such entity were treated as a corporation, it would be required to pay
an entity-level tax on its income. In this situation, the character of our assets and items of gross income would change and could prevent us from satisfying the REIT asset tests and possibly the REIT income tests. See “— Taxation of Our Company — Asset Tests” and “— Income Tests.” This, in turn, could prevent us from qualifying as a REIT. See “— Taxation of Our Company — Failure to Qualify” for a discussion of the effect of our failure to meet these tests. In addition, a change in the tax status of the operating company or a subsidiary treated as a partnership or disregarded entity to a corporation might be treated as a taxable event. If so, we might incur a tax liability without any related cash payment. We believe the operating company and each of the subsidiary partnerships and limited liability companies are and will continue to be treated as partnerships or disregarded entities for U.S. federal income tax purposes.
Allocations of Items of Income, Gain, Loss and Deduction. A partnership agreement (or, in the case of a limited liability company treated as a partnership for U.S. federal income tax purposes, the limited liability company agreement) generally will determine the allocation of income and loss among partners. These allocations, however, will be disregarded for tax purposes if they do not comply with the provisions of Section 704(b) of the Code and the Treasury Regulations thereunder. Generally, Section 704(b) of the Code and the Treasury Regulations thereunder require that partnership allocations respect the economic arrangement of the partners. If an allocation of partnership income or loss does not comply with the requirements of Section 704(b) of the Code and the Treasury Regulations thereunder, the item subject to the allocation will be reallocated in accordance with the partners’ interests in the partnership. This reallocation will be determined by taking into account all of the facts and circumstances relating to the economic arrangement of the partners with respect to such item. The allocations of taxable income and loss of the operating company and any subsidiaries that are treated as partnerships for U.S. federal income tax purposes are intended to comply with the requirements of Section 704(b) of the Code and the Treasury Regulations thereunder.
Tax Allocations With Respect to the Properties. Under Section 704(c) of the Code, items of income, gain, loss and deduction attributable to appreciated or depreciated property that is contributed to a partnership in exchange for an interest in the partnership must be allocated in a manner so that the contributing partner is charged with the unrealized gain or benefits from the unrealized loss associated with the property at the time of the contribution. The amount of the unrealized gain or unrealized loss generally is equal to the difference between the fair market value or book value and the adjusted tax basis of the contributed property at the time of contribution (this difference is referred to as a book-tax difference), as adjusted from time to time. These allocations are solely for U.S. federal income tax purposes and do not affect the book capital accounts or other economic or legal arrangements among the partners.
Some of the partnerships in which we own an interest were formed by way of contributions of appreciated property. In addition, our operating company may, from time to time, acquire interests in property in exchange for interests in our operating company. The relevant partnership and/or limited liability company agreements of our operating partnership and our subsidiary partnerships require that allocations be made in a manner consistent with Section 704(c) of the Code. Section 704(c) of the Code provides partnerships with a choice of several methods of accounting for book-tax differences. Depending on the method we have agreed to or choose in connection with any particular contribution, the carryover basis of each of the contributed interests in the properties in the hands of our operating partnership or subsidiary partnerships could cause us to be allocated less depreciation or more gain on sale with respect to a contributed property than the amounts that would have been allocated to us if we had instead acquired the contributed property with an initial tax basis equal to its fair market value. Such allocations might adversely affect our ability to comply with the REIT distribution requirements. See “— Taxation of Our Company — Requirements for Qualification as a REIT” and “— Annual Distribution Requirements.”
Any property acquired by a subsidiary partnership in a taxable transaction will initially have a tax basis equal to its fair market value, and Section 704(c) of the Code generally will not apply.
Partnership Audit Rules. The Bipartisan Budget Act of 2015 changed the rules applicable to U.S. federal income tax audits of partnerships. Under the new rules (which are generally effective for taxable years beginning after December 31, 2017), among other changes and subject to certain exceptions, any audit adjustment to items of income, gain, loss, deduction, or credit of a partnership (and any partner’s distributive share thereof) is determined, and taxes, interest, or penalties attributable thereto are assessed and collected, at the partnership level. It is possible that these rules could result in partnerships in which we directly or
indirectly invest, including the operating company, being required to pay additional taxes, interest and penalties as a result of an audit adjustment, and we, as a direct or indirect partner of these partnerships, could be required to bear the economic burden of those taxes, interest, and penalties even though we, as a REIT, may not otherwise have been required to pay additional corporate-level taxes as a result of the related audit adjustment. Investors are urged to consult their tax advisors with respect to these changes and their potential impact on their investment in our capital stock.
Material U.S. Federal Income Tax Consequences to Holders of Our Capital Stock and the Operating Company’s Debt Securities
The following discussion is a summary of the material U.S. federal income tax consequences to you of purchasing, owning and disposing of our capital stock or the operating company’s debt securities. This discussion is limited to holders who hold our capital stock or the operating company’s debt securities as “capital assets” within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax consequences relevant to a holder’s particular circumstances, including the alternative minimum tax. In addition, except where specifically noted, it does not address consequences relevant to holders subject to special rules, including, without limitation:
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U.S. expatriates and former citizens or long-term residents of the United States;
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U.S. holders (as defined below) whose functional currency is not the U.S. dollar;
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persons holding our capital stock or the operating company’s debt securities as part of a hedge, straddle or other risk reduction strategy or as part of a conversion transaction or other integrated investment;
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banks, insurance companies, and other financial institutions;
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REITs or regulated investment companies;
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brokers, dealers or traders in securities;
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“controlled foreign corporations,” “passive foreign investment companies,” and corporations that accumulate earnings to avoid U.S. federal income tax;
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S corporations, partnerships or other entities or arrangements treated as partnerships for U.S. federal income tax purposes (and investors therein);
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tax-exempt organizations or governmental organizations;
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persons subject to special tax accounting rules as a result of any item of gross income with respect to our capital stock or the operating company’s debt securities being taken into account in an applicable financial statement;
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persons deemed to sell our capital stock or the operating company’s debt securities under the constructive sale provisions of the Code; and
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persons who hold or receive our capital stock pursuant to the exercise of any employee stock option or otherwise as compensation.
THIS DISCUSSION IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED AS TAX ADVICE. INVESTORS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE APPLICATION OF THE U.S. FEDERAL INCOME TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF OUR CAPITAL STOCK OR THE OPERATING COMPANY’S DEBT SECURITIES ARISING UNDER OTHER U.S. FEDERAL TAX LAWS (INCLUDING ESTATE AND GIFT TAX LAWS), UNDER THE LAWS OF ANY STATE, LOCAL OR NON-U.S. TAXING JURISDICTION OR UNDER ANY APPLICABLE TAX TREATY.
For purposes of this discussion, a “U.S. holder” is a beneficial owner of our capital stock or the operating company’s debt securities that, for U.S. federal income tax purposes, is or is treated as:
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an individual who is a citizen or resident of the United States;
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a corporation created or organized under the laws of the United States, any state thereof, or the District of Columbia;
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an estate, the income of which is subject to U.S. federal income tax regardless of its source; or
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a trust that (1) is subject to the primary supervision of a U.S. court and the control of one or more “United States persons” (within the meaning of Section 7701(a)(30) of the Code) or (2) has a valid election in effect to be treated as a United States person for U.S. federal income tax purposes.
For purposes of this discussion, a “non-U.S. holder” is any beneficial owner of our capital stock or the operating company’s debt securities that is neither a U.S. holder nor an entity treated as a partnership for U.S. federal income tax purposes.
If an entity treated as a partnership for U.S. federal income tax purposes holds our capital stock or the operating company’s debt securities, the tax treatment of a partner in the partnership will depend on the status of the partner, the activities of the partnership and certain determinations made at the partner level. Accordingly, partnerships holding our capital stock or the operating company’s debt securities and the partners in such partnerships should consult their tax advisors regarding the U.S. federal income tax consequences to them.
Taxation of Taxable U.S. Holders of Our Capital Stock
Distributions Generally. Distributions out of our current or accumulated earnings and profits will be treated as dividends and, other than with respect to capital gain dividends and certain amounts which have previously been subject to corporate level tax, as discussed below, will be taxable to our taxable U.S. holders as ordinary income when actually or constructively received. See “— Tax Rates” below. As long as we qualify as a REIT, these distributions will not be eligible for the dividends-received deduction in the case of U.S. holders that are corporations or, except to the extent described in “— Tax Rates” below, the preferential rates on qualified dividend income applicable to non-corporate U.S. holders, including individuals. For purposes of determining whether distributions to holders of our capital stock are out of our current or accumulated earnings and profits, our earnings and profits will be allocated first to our outstanding preferred stock, if any, and then to our outstanding common stock.
To the extent that we make distributions on our capital stock in excess of our current and accumulated earnings and profits allocable to such stock, these distributions will be treated first as a tax-free return of capital to a U.S. holder to the extent of the U.S. holder’s adjusted tax basis in such shares of stock. This treatment will reduce the U.S. holder’s adjusted tax basis in such shares of stock by such amount, but not below zero. Distributions in excess of our current and accumulated earnings and profits and in excess of a U.S. holder’s adjusted tax basis in its shares will be taxable as capital gain. Such gain will be taxable as long-term capital gain if the shares have been held for more than one year. Dividends we declare in October, November, or December of any year and which are payable to a holder of record on a specified date in any of these months will be treated as both paid by us and received by the holder on December 31 of that year, provided we actually pay the dividend on or before January 31 of the following year. U.S. holders may not include in their own income tax returns any of our net operating losses or capital losses.
U.S. holders that receive taxable stock distributions, including distributions partially payable in our capital stock and partially payable in cash, would be required to include the full amount of the distribution (i.e., the cash and the stock portion) as a dividend (subject to limited exceptions) to the extent of our current and accumulated earnings and profits for U.S. federal income tax purposes, as described above. The amount of any distribution payable in our capital stock generally is equal to the amount of cash that could have been received instead of the capital stock. Depending on the circumstances of a U.S. holder, the tax on the distribution may exceed the amount of the distribution received in cash, in which case such U.S. holder would have to pay the tax using cash from other sources. If a U.S. holder sells the capital stock it received in connection with a taxable stock distribution in order to pay this tax and the proceeds of such sale are less than the amount required to be included in income with respect to the stock portion of the distribution, such U.S. holder could have a capital loss with respect to the stock sale that could not be used to offset such income. A U.S. holder that receives capital stock pursuant to such distribution generally has a tax basis in such capital stock equal to the amount of cash that could have been received instead of such capital stock as
described above, and has a holding period in such capital stock that begins on the day immediately following the payment date for the distribution.
Capital Gain Dividends. Dividends that we properly designate as capital gain dividends will be taxable to our taxable U.S. holders as a gain from the sale or disposition of a capital asset held for more than one year, to the extent that such gain does not exceed our actual net capital gain for the taxable year and may not exceed our dividends paid for the taxable year, including dividends paid the following year that are treated as paid in the current year. U.S. holders that are corporations may, however, be required to treat up to 20% of certain capital gain dividends as ordinary income. If we properly designate any portion of a dividend as a capital gain dividend, then, except as otherwise required by law, we presently intend to allocate a portion of the total capital gain dividends paid or made available to holders of all classes of our capital stock for the year to the holders of each class of our capital stock in proportion to the amount that our total dividends, as determined for U.S. federal income tax purposes, paid or made available to the holders of each such class of our capital stock for the year bears to the total dividends, as determined for U.S. federal income tax purposes, paid or made available to holders of all classes of our capital stock for the year. In addition, except as otherwise required by law, we will make a similar allocation with respect to any undistributed long-term capital gains which are to be included in our stockholders’ long-term capital gains, based on the allocation of the capital gain amount which would have resulted if those undistributed long-term capital gains had been distributed as “capital gain dividends” by us to our stockholders.
Retention of Net Capital Gains. We may elect to retain, rather than distribute as a capital gain dividend, all or a portion of our net capital gains. If we make this election, we would pay tax on our retained net capital gains. In addition, to the extent we so elect, our earnings and profits (determined for U.S. federal income tax purposes) would be adjusted accordingly, and a U.S. holder generally would:
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include its pro rata share of our undistributed capital gain in computing its long-term capital gains in its U.S. federal income tax return for its taxable year in which the last day of our taxable year falls, subject to certain limitations as to the amount that is includable;
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be deemed to have paid its share of the capital gains tax imposed on us on the designated amounts included in the U.S. holder’s income as long-term capital gain;
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receive a credit or refund for the amount of tax deemed paid by it;
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increase the adjusted tax basis of its capital stock by the difference between the amount of includable gains and the tax deemed to have been paid by it; and
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in the case of a U.S. holder that is a corporation, appropriately adjust its earnings and profits for the retained capital gains in accordance with Treasury Regulations to be promulgated by the IRS.
Passive Activity Losses and Investment Interest Limitations. Distributions we make and gain arising from the sale or exchange of our capital stock by a U.S. holder will not be treated as passive activity income. As a result, U.S. holders generally will not be able to apply any “passive losses” against this income or gain. A U.S. holder generally may elect to treat capital gain dividends, capital gains from the disposition of our capital stock and income designated as qualified dividend income, as described in “— Tax Rates” below, as investment income for purposes of computing the investment interest limitation, but in such case, the holder will be taxed at ordinary income rates on such amount. Other distributions made by us, to the extent they do not constitute a return of capital, generally will be treated as investment income for purposes of computing the investment interest limitation.
Dispositions of Our Capital Stock. Except as described below under “— Taxation of Taxable U.S. Holders of Our Capital Stock — Redemption or Repurchase by Us,” if a U.S. holder sells or disposes of shares of our capital stock, it will recognize gain or loss for U.S. federal income tax purposes in an amount equal to the difference between the amount of cash and the fair market value of any property received on the sale or other disposition and the holder’s adjusted tax basis in the shares. This gain or loss, except as provided below, will be long-term capital gain or loss if the holder has held such capital stock for more than one year. However, if a U.S. holder recognizes a loss upon the sale or other disposition of capital stock that it has held for six months or less, after applying certain holding period rules, the loss recognized will be treated as a long-term capital loss to the extent the U.S. holder received distributions from us which were required to be treated as long-term capital gains. The deductibility of capital losses is subject to limitations.
Redemption or Repurchase by Us. A redemption or repurchase of shares of our capital stock will be treated under Section 302 of the Code as a distribution (and taxable as a dividend to the extent of our current and accumulated earnings and profits as described above under “— Distributions Generally”) unless the redemption or repurchase satisfies one of the tests set forth in Section 302(b) of the Code and is therefore treated as a sale or exchange of the redeemed or repurchased shares. The redemption or repurchase generally will be treated as a sale or exchange if it:
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is “substantially disproportionate” with respect to the U.S. holder,
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results in a “complete redemption” of the U.S. holder’s stock interest in us, or
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is “not essentially equivalent to a dividend” with respect to the U.S. holder,
all within the meaning of Section 302(b) of the Code.
In determining whether any of these tests has been met, shares of our capital stock, including common stock and other equity interests in us, considered to be owned by the U.S. holder by reason of certain constructive ownership rules set forth in the Code, as well as shares of our capital stock actually owned by the U.S. holder, generally must be taken into account. Because the determination as to whether any of the alternative tests of Section 302(b) of the Code will be satisfied with respect to the U.S. holder depends upon the facts and circumstances at the time that the determination must be made, U.S. holders are advised to consult their tax advisors to determine such tax treatment.
If a redemption or repurchase of shares of our capital stock is treated as a distribution, the amount of the distribution will be measured by the amount of cash and the fair market value of any property received. See “— Distributions Generally.” A U.S. holder’s adjusted tax basis in the redeemed or repurchased shares generally will be transferred to the holder’s remaining shares of our capital stock, if any. If a U.S. holder owns no other shares of our capital stock, under certain circumstances, such basis may be transferred to a related person or it may be lost entirely. Prospective investors should consult their tax advisors regarding the U.S. federal income tax consequences of a redemption or repurchase of our capital stock.
If a redemption or repurchase of shares of our capital stock is not treated as a distribution, it will be treated as a taxable sale or exchange in the manner described under “— Dispositions of Our Capital Stock.”
Tax Rates. The maximum tax rate for non-corporate taxpayers for (1) long-term capital gains, including certain “capital gain dividends,” generally is 20% (although depending on the characteristics of the assets which produced these gains and on designations which we may make, certain capital gain dividends may be taxed at a 25% rate) and (2) “qualified dividend income” generally is 20%. In general, dividends payable by REITs are not eligible for the reduced tax rate on qualified dividend income, except to the extent that certain holding period requirements have been met and the REIT’s dividends are attributable to dividends received from taxable corporations (such as its taxable REIT subsidiaries) or to income that was subject to tax at the corporate/REIT level (for example, if the REIT distributed taxable income that it retained and paid tax on in the prior taxable year). Capital gain dividends will only be eligible for the rates described above to the extent that they are properly designated by the REIT as “capital gain dividends.” U.S. holders that are corporations may be required to treat up to 20% of some capital gain dividends as ordinary income. In addition, non-corporate U.S. holders, including individuals, generally may deduct up to 20% of dividends from a REIT, other than capital gain dividends and dividends treated as qualified dividend income, for taxable years beginning before January 1, 2026 for purposes of determining their U.S. federal income tax (but not for purposes of the 3.8% Medicare tax), subject to certain holding period requirements and other limitations.
Taxation of Tax-Exempt Holders of Our Capital Stock
Dividend income from us and gain arising upon a sale of shares of our capital stock generally should not be unrelated business taxable income (“UBTI”) to a tax-exempt holder, except as described below. This income or gain will be UBTI, however, to the extent a tax-exempt holder holds its shares as “debt-financed property” within the meaning of the Code. Generally, “debt-financed property” is property the acquisition or holding of which was financed through a borrowing by the tax-exempt holder.
For tax-exempt holders that are social clubs, voluntary employee benefit associations or supplemental unemployment benefit trusts exempt from U.S. federal income taxation under Sections 501(c)(7), (c)(9) or (c)(17) of the Code, respectively, income from an investment in our shares will constitute UBTI unless the organization is able to properly claim a deduction for amounts set aside or placed in reserve for specific purposes so as to offset the income generated by its investment in our shares. These prospective investors should consult their tax advisors concerning these “set aside” and reserve requirements.
Notwithstanding the above, however, a portion of the dividends paid by a “pension-held REIT” may be treated as UBTI as to certain trusts that hold more than 10%, by value, of the interests in the REIT. A REIT will not be a “pension-held REIT” if it is able to satisfy the “not closely held” requirement without relying on the “look-through” exception with respect to certain trusts or if such REIT is not “predominantly held” by “qualified trusts.” As a result of restrictions on ownership and transfer of our stock contained in our charter, we do not expect to be classified as a “pension-held REIT,” and as a result, the tax treatment described above should be inapplicable to our holders. However, because our common stock is (and, we anticipate, will continue to be) publicly traded, we cannot guarantee that this will always be the case.
Taxation of Non-U.S. Holders of Our Capital Stock
The following discussion addresses the rules governing U.S. federal income taxation of the purchase, ownership and disposition of our capital stock by non-U.S. holders. These rules are complex, and no attempt is made herein to provide more than a brief summary of such rules. Accordingly, the discussion does not address all aspects of U.S. federal income taxation and does not address other federal, state, local or non-U.S. tax consequences that may be relevant to a non-U.S. holder in light of its particular circumstances. We urge non-U.S. holders to consult their tax advisors to determine the impact of U.S. federal, state, local and non-U.S. income and other tax laws and any applicable tax treaty on the purchase, ownership and disposition of shares of our capital stock, including any reporting requirements.
Distributions Generally. Distributions (including any taxable stock distributions) that are neither attributable to gains from sales or exchanges by us of United States real property interests (“USRPIs”) nor designated by us as capital gain dividends (except as described below) will be treated as dividends of ordinary income to the extent that they are made out of our current or accumulated earnings and profits. Such distributions ordinarily will be subject to withholding of U.S. federal income tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty, unless the distributions are treated as effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such dividends are attributable). Under certain treaties, however, lower withholding rates generally applicable to dividends do not apply to dividends from a REIT. Certain certification and disclosure requirements must be satisfied for a non-U.S. holder to be exempt from withholding under the effectively connected income exemption. Dividends that are treated as effectively connected with a U.S. trade or business generally will not be subject to withholding but will be subject to U.S. federal income tax on a net basis at the regular rates, in the same manner as dividends paid to U.S. holders are subject to U.S. federal income tax. Any such dividends received by a non-U.S. holder that is a corporation may also be subject to an additional branch profits tax at a 30% rate (applicable after deducting U.S. federal income taxes paid on such effectively connected income) or such lower rate as may be specified by an applicable income tax treaty.
Except as otherwise provided below, we expect to withhold U.S. federal income tax at the rate of 30% on any distributions made to a non-U.S. holder unless:
(1)
a lower treaty rate applies and the non-U.S. holder furnishes an IRS Form W-8BEN or W-8BEN-E (or other applicable documentation) evidencing eligibility for that reduced treaty rate; or
(2)
the non-U.S. holder furnishes an IRS Form W-8ECI (or other applicable documentation) claiming that the distribution is income effectively connected with the non-U.S. holder’s trade or business.
Distributions in excess of our current and accumulated earnings and profits will not be taxable to a non-U.S. holder to the extent that such distributions do not exceed the adjusted tax basis of the holder’s capital stock, but rather will reduce the adjusted tax basis of such stock. To the extent that such distributions exceed the non-U.S. holder’s adjusted tax basis in such capital stock, they generally will give rise to gain
from the sale or exchange of such stock, the tax treatment of which is described below. However, such excess distributions may be treated as dividend income for certain non-U.S. holders. For withholding purposes, we expect to treat all distributions as made out of our current or accumulated earnings and profits. However, amounts withheld may be refundable if it is subsequently determined that the distribution was, in fact, in excess of our current and accumulated earnings and profits, provided that certain conditions are met.
Capital Gain Dividends and Distributions Attributable to a Sale or Exchange of United States Real Property Interests. Distributions to a non-U.S. holder that we properly designate as capital gain dividends, other than those arising from the disposition of a USRPI, generally should not be subject to U.S. federal income taxation, unless:
(1)
the investment in our capital stock is treated as effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such dividends are attributable), in which case the non-U.S. holder will be subject to the same treatment as U.S. holders with respect to such gain, except that a non-U.S. holder that is a corporation may also be subject to a branch profits tax of up to 30%, as discussed above; or
(2)
the non-U.S. holder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and certain other conditions are met, in which case the non-U.S. holder will be subject to U.S. federal income tax at a rate of 30% on the non-U.S. holder’s capital gains (or such lower rate specified by an applicable income tax treaty), which may be offset by U.S. source capital losses of such non-U.S. holder (even though the individual is not considered a resident of the United States), provided the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses.
Pursuant to the Foreign Investment in Real Property Tax Act, which is referred to as “FIRPTA,” distributions to a non-U.S. holder that are attributable to gain from sales or exchanges by us of USRPIs, whether or not designated as capital gain dividends, will cause the non-U.S. holder to be treated as recognizing such gain as income effectively connected with a U.S. trade or business. Non-U.S. holders generally would be taxed at the regular rates applicable to U.S. holders, subject to any applicable alternative minimum tax and a special alternative minimum tax in the case of nonresident alien individuals. We also will be required to withhold and to remit to the IRS 21% of any distribution to non-U.S. holders attributable to gain from sales or exchanges by us of USRPIs. Distributions subject to FIRPTA may also be subject to a 30% branch profits tax in the hands of a non-U.S. holder that is a corporation. The amount withheld is creditable against the non-U.S. holder’s U.S. federal income tax liability. However, any distribution with respect to any class of stock that is “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market located in the United States is not subject to FIRPTA, and therefore, not subject to the 21% U.S. withholding tax described above, if the non-U.S. holder did not own more than 10% of such class of stock at any time during the one-year period ending on the date of the distribution. Instead, such distributions generally will be treated as ordinary dividend distributions and subject to withholding in the manner described above with respect to ordinary dividends. In addition, distributions to certain non-U.S. publicly traded shareholders that meet certain record-keeping and other requirements (“qualified shareholders”) are exempt from FIRPTA, except to the extent owners of such qualified shareholders that are not also qualified shareholders own, actually or constructively, more than 10% of our capital stock. Furthermore, distributions to “qualified foreign pension funds” or entities all of the interests of which are held by “qualified foreign pension funds” are exempt from FIRPTA. Non-U.S. holders should consult their tax advisors regarding the application of these rules.
Retention of Net Capital Gains. Although the law is not clear on the matter, it appears that amounts we designate as retained net capital gains in respect of our capital stock should be treated with respect to non-U.S. holders as actual distributions of capital gain dividends. Under this approach, the non-U.S. holders may be able to offset as a credit against their U.S. federal income tax liability their proportionate share of the tax paid by us on such retained net capital gains and to receive from the IRS a refund to the extent their proportionate share of such tax paid by us exceeds their actual U.S. federal income tax liability. If we were to designate any portion of our net capital gain as retained net capital gain, non-U.S. holders should consult their tax advisors regarding the taxation of such retained net capital gain.
Sale of Our Capital Stock. Except as described below under “— Redemption or Repurchase by Us,” gain realized by a non-U.S. holder upon the sale, exchange or other taxable disposition of our capital stock generally will not be subject to U.S. federal income tax unless such stock constitutes a USRPI. In general, stock of a domestic corporation that constitutes a “United States real property holding corporation,” or USRPHC, will constitute a USRPI. We believe that we are a USRPHC. Our capital stock will not, however, constitute a USRPI so long as we are a “domestically controlled qualified investment entity.” A “domestically controlled qualified investment entity” includes a REIT in which at all times during a five-year testing period less than 50% in value of its stock is held directly or indirectly by non-United States persons, subject to certain rules. For purposes of determining whether a REIT is a “domestically controlled qualified investment entity,” a person who at all applicable times holds less than 5% of a class of stock that is “regularly traded” is treated as a United States person unless the REIT has actual knowledge that such person is not a United States person. We believe, but cannot guarantee, that we are a “domestically controlled qualified investment entity.” Because our common stock is (and, we anticipate, will continue to be) publicly traded, no assurance can be given that we will continue to be a “domestically controlled qualified investment entity.”
Even if we do not qualify as a “domestically controlled qualified investment entity” at the time a non-U.S. holder sells our capital stock, gain realized from the sale or other taxable disposition by a non-U.S. holder of such capital stock would not be subject to U.S. federal income tax under FIRPTA as a sale of a USRPI if:
(1)
such class of stock is “regularly traded,” as defined by applicable Treasury Regulations, on an established securities market such as the NYSE; and
(2)
such non-U.S. holder owned, actually and constructively, 10% or less of such class of stock throughout the shorter of the five-year period ending on the date of the sale or other taxable disposition or the non-U.S. holder’s holding period.
In addition, dispositions of our capital stock by qualified shareholders are exempt from FIRPTA, except to the extent owners of such qualified shareholders that are not also qualified shareholders own, actually or constructively, more than 10% of our capital stock. Furthermore, dispositions of our capital stock by “qualified foreign pension funds” or entities all of the interests of which are held by “qualified foreign pension funds” are exempt from FIRPTA. Non-U.S. holders should consult their tax advisors regarding the application of these rules.
Notwithstanding the foregoing, gain from the sale, exchange or other taxable disposition of our capital stock not otherwise subject to FIRPTA will be taxable to a non-U.S. holder if either (a) the investment in our capital stock is treated as effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such gain is attributable), in which case the non-U.S. holder will be subject to the same treatment as U.S. holders with respect to such gain, except that a non-U.S. holder that is a corporation may also be subject to the 30% branch profits tax (or such lower rate as may be specified by an applicable income tax treaty) on such gain, as adjusted for certain items, or (b) the non-U.S. holder is a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and certain other conditions are met, in which case the non-U.S. holder will be subject to a 30% tax on the non-U.S. holder’s capital gains (or such lower rate specified by an applicable income tax treaty), which may be offset by U.S. source capital losses of the non-U.S. holder (even though the individual is not considered a resident of the United States), provided the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses. In addition, even if we are a domestically controlled qualified investment entity, upon disposition of our capital stock, a non-U.S. holder may be treated as having gain from the sale or other taxable disposition of a USRPI if the non-U.S. holder (1) disposes of such stock within a 30-day period preceding the ex-dividend date of a distribution, any portion of which, but for the disposition, would have been treated as gain from the sale or exchange of a USRPI and (2) acquires, or enters into a contract or option to acquire, or is deemed to acquire, other shares of that stock during the 61-day period beginning with the first day of the 30-day period described in clause (1), unless such class of stock is “regularly traded” and the non-U.S. holder did not own more than 10% of such class of stock at any time during the one-year period ending on the date of the distribution described in clause (1).
If gain on the sale, exchange or other taxable disposition of our capital stock were subject to taxation under FIRPTA, the non-U.S. holder would be required to file a U.S. federal income tax return and would be subject to regular U.S. federal income tax with respect to such gain in the same manner as a taxable U.S. holder (subject to any applicable alternative minimum tax and a special alternative minimum tax in the case of nonresident alien individuals). In addition, if the sale, exchange or other taxable disposition of our capital stock were subject to taxation under FIRPTA, and if shares of the applicable class of our capital stock were not “regularly traded” on an established securities market, the purchaser of such capital stock generally would be required to withhold and remit to the IRS 15% of the purchase price.
Redemption or Repurchase by Us. A redemption or repurchase of shares of our capital stock will be treated under Section 302 of the Code as a distribution (and taxable as a dividend to the extent of our current and accumulated earnings and profits) unless the redemption or repurchase satisfies one of the tests set forth in Section 302(b) of the Code and is therefore treated as a sale or exchange of the redeemed or repurchased shares. See “— Taxation of Taxable U.S. Holders of Our Capital Stock — Redemption or Repurchase by Us.” Qualified shareholders and their owners may be subject to different rules, and should consult their tax advisors regarding the application of such rules. If the redemption or repurchase of shares is treated as a distribution, the amount of the distribution will be measured by the amount of cash and the fair market value of any property received. See “— Taxation of Non-U.S. Holders of Our Capital Stock — Distributions Generally” above. If the redemption or repurchase of shares is not treated as a distribution, it will be treated as a taxable sale or exchange in the manner described above under “— Sale of Our Capital Stock.”
Taxation of Holders of the Operating Company’s Debt Securities
The following summary describes the material U.S. federal income tax consequences of purchasing, owning and disposing of debt securities issued by the operating company. This discussion assumes the debt securities will be issued with less than a statutory de minimis amount of original issue discount for U.S. federal income tax purposes. In addition, this discussion is limited to persons purchasing the debt securities for cash at original issue and at their original “issue price” within the meaning of Section 1273 of the Code (i.e., the first price at which a substantial amount of the debt securities is sold to the public for cash).
Tax Consequences Applicable to U.S. Holders
Payments of Interest. Interest on a debt security generally will be taxable to a U.S. holder as ordinary income at the time such interest is received or accrued, in accordance with such U.S. holder’s method of accounting for U.S. federal income tax purposes.
Sale or Other Taxable Disposition. A U.S. holder will recognize gain or loss on the sale, exchange, redemption, retirement or other taxable disposition of a debt security. The amount of such gain or loss generally will be equal to the difference between the amount received for the debt security in cash or other property valued at fair market value (less amounts attributable to any accrued but unpaid interest, which will be taxable as interest to the extent not previously included in income) and the U.S. holder’s adjusted tax basis in the debt security. A U.S. holder’s adjusted tax basis in a debt security generally will be equal to the amount the U.S. holder paid for the debt security. Any gain or loss generally will be capital gain or loss, and will be long-term capital gain or loss if the U.S. holder has held the debt security for more than one year at the time of such sale or other taxable disposition. Otherwise, such gain or loss will be short-term capital gain or loss. Long-term capital gains recognized by certain non-corporate U.S. holders, including individuals, generally will be taxable at reduced rates. The deductibility of capital losses is subject to limitations.
Tax Consequences Applicable to Non-U.S. Holders
Payments of Interest. Interest paid on a debt security to a non-U.S. holder that is not effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States generally will not be subject to U.S. federal income tax or withholding, provided that:
•
the non-U.S. holder does not, actually or constructively, own 10% or more of the operating company’s capital or profits;
•
the non-U.S. holder is not a controlled foreign corporation related to the operating company through actual or constructive stock ownership; and
•
either (1) the non-U.S. holder certifies in a statement provided to the applicable withholding agent under penalties of perjury that it is not a United States person and provides its name and address; (2) a securities clearing organization, bank or other financial institution that holds customers’ securities in the ordinary course of its trade or business and holds the debt security on behalf of the non-U.S. holder certifies to the applicable withholding agent under penalties of perjury that it, or the financial institution between it and the non-U.S. holder, has received from the non-U.S. holder a statement under penalties of perjury that such holder is not a United States person and provides the applicable withholding agent with a copy of such statement; or (3) the non-U.S. holder holds its debt security directly through a “qualified intermediary” (within the meaning of the applicable Treasury Regulations) and certain conditions are satisfied.
If a non-U.S. holder does not satisfy the requirements above, such non-U.S. holder will be subject to withholding tax of 30%, subject to a reduction in or an exemption from withholding on such interest as a result of an applicable tax treaty. To claim such entitlement, the non-U.S. holder must provide the applicable withholding agent with a properly executed IRS Form W-8BEN or W-8BEN-E (or other applicable documentation) claiming a reduction in or exemption from withholding tax under the benefit of an income tax treaty between the United States and the country in which the non-U.S. holder resides or is established.
If interest paid to a non-U.S. holder is effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such interest is attributable), the non-U.S. holder will be exempt from the U.S. federal withholding tax described above. To claim the exemption, the non-U.S. holder must furnish to the applicable withholding agent a valid IRS Form W-8ECI, certifying that interest paid on a debt security is not subject to withholding tax because it is effectively connected with the conduct by the non-U.S. holder of a trade or business within the United States.
Any such effectively connected interest generally will be subject to U.S. federal income tax at the regular rates. A non-U.S. holder that is a corporation may also be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected interest, as adjusted for certain items.
The certifications described above must be provided to the applicable withholding agent prior to the payment of interest and must be updated periodically. Non-U.S. holders that do not timely provide the applicable withholding agent with the required certification, but that qualify for a reduced rate under an applicable income tax treaty, may obtain a refund of any excess amounts withheld by timely filing an appropriate claim for refund with the IRS. Non-U.S. holders should consult their tax advisors regarding their entitlement to benefits under any applicable income tax treaty.
Sale or Other Taxable Disposition. A non-U.S. holder will not be subject to U.S. federal income tax on any gain realized upon the sale, exchange, redemption, retirement or other taxable disposition of a debt security (such amount excludes any amount allocable to accrued and unpaid interest, which generally will be treated as interest and may be subject to the rules discussed above in “— Taxation of Holders of The Operating Company’s Debt Securities — Tax Consequences Applicable to Non-U.S. Holders — Payments of Interest”) unless:
•
the gain is effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States (and, if required by an applicable income tax treaty, the non-U.S. holder maintains a permanent establishment in the United States to which such gain is attributable); or
•
the non-U.S. holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the disposition and certain other requirements are met.
Gain described in the first bullet point above generally will be subject to U.S. federal income tax on a net income basis at the regular rates. A non-U.S. holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on such effectively connected gain, as adjusted for certain items.
A non-U.S. holder described in the second bullet point above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate specified by an applicable income tax treaty) on gain realized upon the sale or other taxable disposition of a debt security, which may be offset by U.S. source capital losses of the non-U.S. holder (even though the individual is not considered a resident of the United States), provided the non-U.S. holder has timely filed U.S. federal income tax returns with respect to such losses.
Non-U.S. holders should consult their tax advisors regarding any applicable income tax treaties that may provide for different rules.
Information Reporting and Backup Withholding
U.S. Holders. A U.S. holder may be subject to information reporting and backup withholding when such holder receives payments on our capital stock or the operating company’s debt securities or proceeds from the sale or other taxable disposition of such stock or debt securities (including a redemption or retirement of a debt security). Certain U.S. holders are exempt from backup withholding, including corporations and certain tax-exempt organizations. A U.S. holder will be subject to backup withholding if such holder is not otherwise exempt and:
•
the holder fails to furnish the holder’s taxpayer identification number, which for an individual is ordinarily his or her social security number;
•
the holder furnishes an incorrect taxpayer identification number;
•
the applicable withholding agent is notified by the IRS that the holder previously failed to properly report payments of interest or dividends; or
•
the holder fails to certify under penalties of perjury that the holder has furnished a correct taxpayer identification number and that the IRS has not notified the holder that the holder is subject to backup withholding.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a U.S. holder’s U.S. federal income tax liability, provided the required information is timely furnished to the IRS. U.S. holders should consult their tax advisors regarding their qualification for an exemption from backup withholding and the procedures for obtaining such an exemption.
Non-U.S. Holders. Payments of dividends on our capital stock or interest on the operating company’s debt securities generally will not be subject to backup withholding, provided the applicable withholding agent does not have actual knowledge or reason to know the holder is a United States person and the holder either certifies its non-U.S. status, such as by furnishing a valid IRS Form W-8BEN, W-8BEN-E or W-8ECI, or otherwise establishes an exemption. However, information returns are required to be filed with the IRS in connection with any distributions on our capital stock or interest on the operating company’s debt securities paid to the non-U.S. holder, regardless of whether such distributions constitute a dividend or whether any tax was actually withheld. In addition, proceeds of the sale or other taxable disposition of such stock or debt securities (including a retirement or redemption of a debt security) within the United States or conducted through certain U.S.-related brokers generally will not be subject to backup withholding or information reporting if the applicable withholding agent receives the certification described above and does not have actual knowledge or reason to know that such holder is a United States person, or the holder otherwise establishes an exemption. Proceeds of a disposition of such stock or debt securities conducted through a non-U.S. office of a non-U.S. broker generally will not be subject to backup withholding or information reporting.
Copies of information returns that are filed with the IRS may also be made available under the provisions of an applicable treaty or agreement to the tax authorities of the country in which the non-U.S. holder resides or is established.
Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a non-U.S. holder’s U.S. federal income tax liability, provided the required information is timely furnished to the IRS.
Medicare Contribution Tax on Unearned Income
Certain U.S. holders that are individuals, estates or trusts are required to pay an additional 3.8% tax on, among other things, dividends on stock, interest on debt obligations and capital gains from the sale or other disposition of stock or debt obligations, subject to certain limitations. U.S. holders should consult their tax advisors regarding the effect, if any, of these rules on their ownership and disposition of our capital stock or the operating company’s debt securities.
Additional Withholding Tax on Payments Made to Foreign Accounts
Withholding taxes may be imposed under Sections 1471 to 1474 of the Code (such sections commonly referred to as the Foreign Account Tax Compliance Act (“FATCA”)) on certain types of payments made to non-U.S. financial institutions and certain other non-U.S. entities. Specifically, a 30% withholding tax may be imposed on dividends on our capital stock, interest on the operating company’s debt securities, or (subject to the proposed Treasury Regulations discussed below) gross proceeds from the sale or other disposition of our capital stock or the operating company’s debt securities, in each case paid to a “foreign financial institution” or a “non-financial foreign entity” (each as defined in the Code), unless (1) the foreign financial institution undertakes certain diligence and reporting obligations, (2) the non-financial foreign entity either certifies it does not have any “substantial United States owners” (as defined in the Code) or furnishes identifying information regarding each substantial United States owner, or (3) the foreign financial institution or non-financial foreign entity otherwise qualifies for an exemption from these rules. If the payee is a foreign financial institution and is subject to the diligence and reporting requirements in clause (1) above, it must enter into an agreement with the U.S. Department of the Treasury requiring, among other things, that it undertake to identify accounts held by certain “specified United States persons” or “United States owned foreign entities” (each as defined in the Code), annually report certain information about such accounts, and withhold 30% on certain payments to non-compliant foreign financial institutions and certain other account holders. Foreign financial institutions located in jurisdictions that have an intergovernmental agreement with the United States governing FATCA may be subject to different rules.
Under the applicable Treasury Regulations and administrative guidance, withholding under FATCA generally applies to payments of dividends on our capital stock or interest on the operating company’s debt securities. While withholding under FATCA would have applied also to payments of gross proceeds from the sale or other disposition of stock or debt securities on or after January 1, 2019, proposed Treasury Regulations eliminate FATCA withholding on payments of gross proceeds entirely. Taxpayers generally may rely on these proposed Treasury Regulations until final Treasury Regulations are issued. Because we may not know the extent to which a distribution is a dividend for U.S. federal income tax purposes at the time it is made, for purposes of these withholding rules we may treat the entire distribution as a dividend.
Prospective investors should consult their tax advisors regarding the potential application of withholding under FATCA to their investment in our capital stock or the operating company’s debt securities.
Other Tax Consequences State, local and non-U.S. income tax laws may differ substantially from the corresponding U.S. federal income tax laws, and this discussion does not purport to describe any aspect of the tax laws of any state, local or non-U.S. jurisdiction, or any U.S. federal tax other than income tax. You should consult your tax advisor regarding the effect of state, local and non-U.S. tax laws with respect to our tax treatment as a REIT and on an investment in our capital stock or the operating company’s debt securities.
PLAN OF DISTRIBUTION
We, or the selling securityholders, may sell the securities offered by this prospectus from time to time in one or more transactions, including without limitation:
•
directly to one or more purchasers;
•
through agents;
•
to or through underwriters, brokers or dealers; or
•
through a combination of any of these methods.
A prospectus supplement with respect to each offering of securities will state the terms of the offering of the securities, including:
•
the method of distribution including the name or names of any underwriters or agents and the amounts of securities underwritten or purchased by each of them, if any;
•
the public offering price or purchase price of the securities and the net proceeds to be received by us from the sale;
•
any delayed delivery arrangements;
•
any underwriting discounts or agency fees and other items constituting underwriters’ or agents’ compensation;
•
any discounts or concessions allowed or reallowed or paid to dealers; and
•
any securities exchange or markets on which the securities may be listed.
The offer and sale of the securities described in this prospectus by us, the underwriters or the third parties described above may be effected from time to time in one or more transactions, including privately negotiated transactions, either:
•
at a fixed price or prices, which may be changed;
•
at market prices prevailing at the time of sale;
•
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;
•
at prices related to the prevailing market prices; or
•
at negotiated prices.
General
Any public offering price and any discounts, commissions, concessions or other items constituting compensation allowed or reallowed or paid to underwriters, dealers, agents or remarketing firms may be changed from time to time. Underwriters, dealers, agents and remarketing firms that participate in the distribution of the offered securities may be “underwriters” as defined in the Securities Act. Any discounts or commissions they receive from us and any profits they receive on the resale of the offered securities may be treated as underwriting discounts and commissions under the Securities Act. We will identify any underwriters, dealers, agents or remarketing firms and describe their commissions, fees or discounts in the applicable prospectus supplement or free writing prospectus, as the case may be.
Underwriters, Agents and Remarketing Firms
If underwriters are used in a sale, they will acquire the offered securities for their own account. The underwriters may resell the offered securities in one or more transactions, including negotiated transactions. These sales may be made at a fixed public offering price or prices, which may be changed, at market prices prevailing at the time of the sale, at prices related to such prevailing market price or at negotiated prices. We may offer the securities to the public through an underwriting syndicate or through a single underwriter.
The underwriters in any particular offering will be stated in the applicable prospectus supplement or free writing prospectus, as the case may be.
Unless otherwise specified in connection with any particular offering of securities, the obligations of the underwriters to purchase the offered securities will be subject to certain conditions contained in an underwriting agreement that we will enter into with the underwriters at the time of the sale to them. The underwriters will be obligated to purchase all of the securities offered if any of the securities are purchased, unless otherwise specified in connection with any particular offering of securities. Any initial offering price and any discounts or concessions allowed, reallowed or paid to dealers may be changed from time to time.
We may designate agents to sell the offered securities. Unless otherwise specified in connection with any particular offering of securities, the agents will agree to use their best efforts to solicit purchases for the period of their appointment. We may also sell the offered securities to one or more remarketing firms, acting as principals for their own accounts or as agents for us. These firms will remarket the offered securities upon purchasing them in accordance with a redemption or repayment pursuant to the terms of the offered securities. A prospectus supplement or free writing prospectus, as the case may be, will identify any remarketing firm and will describe the terms of its agreement, if any, with us and its compensation.
In connection with offerings made through underwriters or agents, we may enter into agreements with such underwriters or agents pursuant to which we receive our outstanding securities in consideration for the securities being offered to the public for cash. In connection with these arrangements, the underwriters or agents may also sell securities covered by this prospectus to hedge their positions in these outstanding securities, including in short sale transactions. If so, the underwriters or agents may use the securities received from us under these arrangements to close out any related open borrowings of securities.
Dealers
We may sell the offered securities to dealers as principals. We may negotiate and pay dealers’ commissions, discounts or concessions for their services. Dealers may then resell such securities to the public either at varying prices to be determined by the dealers or at a fixed offering price agreed to with us at the time of resale. Dealers engaged by us may allow other dealers to participate in resales.
Direct Sales
We may choose to sell the offered securities directly. In this case, no underwriters or agents would be involved.
Institutional Purchasers
We may authorize agents, dealers or underwriters to solicit certain institutional investors to purchase offered securities on a delayed delivery basis pursuant to delayed delivery contracts providing for payment and delivery on a specified future date. The applicable prospectus supplement or free writing prospectus, as the case may be, will provide the details of any such arrangement, including the offering price and commissions payable.
We will enter into such delayed contracts only with institutional purchasers that we approve. These institutions may include commercial and savings banks, insurance companies, pension funds, investment companies and educational and charitable institutions.
Indemnification; Other Relationships
We may have agreements with underwriters, dealers, agents and remarketing firms to indemnify them against certain civil liabilities, including liabilities under the Securities Act. Underwriters, dealers, agents and remarketing firms, and their affiliates, may engage in transactions with, or perform services for, us in the ordinary course of business. These transactions include commercial banking and investment banking transactions.
Market Making, Stabilization and Other Transactions
There is currently no market for any of the offered securities, other than our common stock, which is listed for trading on the NYSE. If the offered securities are traded after their initial issuance, they may trade at a discount from their initial offering price, depending upon prevailing interest rates, the market for similar securities and other factors. While it is possible that an underwriter could inform us that it intended to make a market in the offered securities, such underwriter would not be obligated to do so, and any such market making could be discontinued at any time without notice. Therefore, no assurance can be given as to whether an active trading market will develop for the offered securities. We have no current plans for listing of preferred stock, depositary shares, debt securities or warrants offered by this prospectus on any securities exchange; any such listing with respect to any particular preferred stock, depositary shares, debt securities or warrants will be described in an applicable prospectus supplement or free writing prospectus, as the case may be.
In connection with any offering of securities, the underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. Specifically, the underwriters may overallot in connection with an offering, creating a short position in the securities for their account. In addition, to cover overallotments or to stabilize the price of the securities, the underwriters may bid for, and purchase, securities in the open market. Finally, an underwriting syndicate may reclaim selling concessions allowed to an underwriter or a dealer for distributing the securities in the offering if the syndicate repurchases previously distributed securities in transactions to cover syndicate short positions, in stabilization transactions, or otherwise. Any of these activities may cause the price of securities to be higher than it would be in the absence of the transactions. The underwriters are not required to engage in these activities and, if they commence these transactions, may discontinue any of these activities at any time.
Fees and Commissions
In compliance with the guidelines of the Financial Industry Regulatory Authority, Inc., or FINRA, the aggregate maximum discount, commission or agency fees or other items constituting underwriting compensation to be received by any FINRA member or independent broker-dealer shall be fair and reasonable.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, certain legal matters regarding the validity of the securities offered hereby will be passed upon for us by Latham & Watkins LLP, Los Angeles, California, and, with respect to certain matters of Maryland law, Ballard Spahr LLP, Baltimore, Maryland. Latham & Watkins LLP, Los Angeles, California, has issued an opinion to us regarding certain tax matters described under “United States Federal Income Tax Considerations.” Additional legal matters may be passed upon for us or any underwriters, dealers or agents, by counsel that we will name in the applicable prospectus supplement.
EXPERTS
The financial statements of Healthpeak Properties, Inc. incorporated by reference in this Prospectus, and the effectiveness of Healthpeak Properties, Inc.’s internal control over financial reporting have been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as stated in their reports. Such financial statements are incorporated by reference in reliance upon the reports of such firm, given their authority as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses relating to the registration of the securities will be borne by the registrant. Such expenses are estimated to be as follows:
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Accounting Fees and Expenses
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|
Legal Fees
|
|
|
|
|
**
|
|
|
|
Printing Fees
|
|
|
|
|
**
|
|
|
|
Transfer Agent’s and Trustees’ Fees and Expenses
|
|
|
|
|
**
|
|
|
|
Rating Agency Fees
|
|
|
|
|
**
|
|
|
|
Miscellaneous expenses
|
|
|
|
|
**
|
|
|
|
Total
|
|
|
|
$ |
**
|
|
|
*
Deferred in accordance with Rules 456(b) and 457(r) of the Securities Act.
**
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
Item 15. Indemnifications of directors and officers.
Set forth below is a description of certain provisions of the organizational documents for each registrant, as applicable, and a description of the applicable state law for each registrant, respectively.
Insofar as the following provisions permit indemnification of directors, officers or persons controlling us for liability arising under the Securities Act, we have been informed that, in the opinion of the Securities and Exchange Commission, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Healthpeak Properties, Inc.
Healthpeak Properties, Inc.’s charter (the “Charter”) limits the liability of our directors and officers to the Company and our stockholders for money damages to the fullest extent permitted by the laws of the State of Maryland. The Maryland General Corporation Law presently permits the liability of directors and officers to a corporation or its stockholders for money damages to be limited, except (i) to the extent that it is proved that the director or officer actually received an improper benefit or profit or (ii) if the judgment or other final adjudication is entered in a proceeding based on a finding that the directors or officers action, or failure to act, was a result of active and deliberate dishonesty and was material to the cause of action adjudicated in the proceeding. The provisions of the Charter do not limit the ability of us or our stockholders to obtain other relief, such as injunction or rescission.
Article X of our Amended and Restated Bylaws (the “Bylaws”) provides that we shall indemnify and hold harmless, in the manner and to the fullest extent permitted by law, any person who is or was a party to, or is threatened to be made a party to, any threatened, pending or completed action, suit or proceeding, whether or not by or in the right of the Company, and whether civil, criminal, administrative, investigative or otherwise, by reason of the fact that such person is or was our director or officer, or, as our director or officer, is or was serving at the request of us as a director, officer, trustee, partner, member, agent or employee of another corporation, partnership, limited liability company, association, joint venture, trust, benefit plan or other enterprise. To the fullest extent permitted by law, such indemnification shall include expenses (including attorneys’ fees), judgment, fines and amounts paid in settlement and any such expenses may be paid by us in advance of the final disposition of such action, suit or proceeding and without requiring a preliminary determination as to the ultimate entitlement to indemnification. In addition, the Maryland
General Corporation Law requires a corporation, as a condition to advancing expenses, to obtain (a) a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification by such corporation as authorized by the Maryland General Corporation Law and (b) a written statement by or on his behalf to repay the amount paid or reimbursed by such corporation if it shall ultimately be determined that the standard of conduct was not met.
Article X of the Bylaws further provides that we may, with the approval of our board, provide such indemnification and advancement of expenses as set forth in the above paragraph to our agents and employees.
Section 2-418 of the Maryland General Corporation Law requires a corporation, unless its charter provides otherwise, which the Charter does not, to indemnify a director or officer who has been successful, on the merits or otherwise, in the defense of any proceeding to which he is made a party by reason of his service in that capacity, or in the defense of any claim, issue or matter in the proceeding. Section 2-418 of the Maryland General Corporation Law generally permits indemnification of any director or officer made a party to any proceedings by reason of service as a director or officer unless it is established that: (i) the act or omission of such person was material to the matter giving rise to the proceeding and was committed in bad faith or was the result of active and deliberate dishonesty; (ii) such person actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal proceeding, such person had reasonable cause to believe that the act or omission was unlawful. The indemnity may include judgments, penalties, fines, settlements and reasonable expenses actually incurred by the director or officer in connection with the proceeding; provided, however, that if the proceeding is one by, or in the right of the corporation, indemnification is not permitted with respect to any proceeding in which the director or officer has been adjudged to be liable to the corporation. In addition, a director or officer may not be indemnified with respect to any proceeding charging improper personal benefit to the director or officer adjudged to be liable on the basis that personal benefit was improperly received. The termination of any proceeding by conviction or upon a plea of nolo contendere or its equivalent or an entry of an order of probation prior to judgment creates a rebuttable presumption that the director or officer did not meet the requisite standard of conduct required for permitted indemnification. The termination of any proceeding by judgment, order or settlement, however, does not create a presumption that the director or officer failed to meet the requisite standard of conduct for permitted indemnification.
Healthpeak OP, LLC
The operating agreement of Healthpeak OP, LLC provides that, to the fullest extent that a Maryland corporation may indemnify and advance expenses to directors and officers of a Maryland corporation under the laws of the State of Maryland, Healthpeak OP, LLC will indemnify, and will pay or reimburse reasonable expenses in advance of final disposition of a proceeding to, any indemnitee (as defined in the operating agreement) who is made or threatened to be made a party to, or witness in, a proceeding by reason of his or her service as an indemnitee. The operating agreement provides that, without limitation, the foregoing indemnity will extend to any liability of any indemnitee, pursuant to a loan guaranty or otherwise, for any indebtedness of Healthpeak OP, LLC or any subsidiary of Healthpeak OP, LLC (including, without limitation, any indebtedness which Healthpeak OP, LLC or any subsidiary of Healthpeak OP, LLC has assumed or taken subject to). The operating agreement further provides that Healthpeak OP, LLC may indemnify each indemnitee to the fullest extent permitted by law and the operating agreement. The operating agreement provides that the termination of any proceeding by judgment, order or settlement does not create a presumption that the indemnitee did not meet the requisite standard of conduct set forth in the operating agreement, and that the termination of any proceeding by conviction of an indemnitee or upon a plea of nolo contendere or its equivalent by an indemnitee, or an entry of an order of probation against an indemnitee prior to judgment, does not create a presumption that such indemnitee acted in a manner contrary to that specified in the operating agreement with respect to the subject matter of such proceeding. The operating agreement further provides that any indemnification pursuant to the operating agreement will be made only out of the assets of Healthpeak OP, LLC, and neither the managing member nor any other holder will have any obligation to contribute to the capital of Healthpeak OP, LLC or otherwise provide funds to enable Healthpeak OP, LLC to fund its indemnification obligations under the operating agreement . Under the operating agreement, an “indemnitee” includes Healthpeak Properties, Inc., as managing member, each present or former director of Healthpeak Properties, Inc. and officer of Healthpeak OP, LLC
or Healthpeak Properties, Inc., and such other persons (including affiliates or employees of Healthpeak Properties, Inc. or Healthpeak OP, LLC) as Healthpeak OP, LLC may designate from time to time in its sole and absolute discretion.
Item 16. Exhibits
| |
Exhibit
Number
|
|
|
|
|
| |
1.1
|
|
|
Form of Underwriting Agreement.*
|
|
| |
3.1
|
|
|
Articles of Amendment and Restatement of Healthpeak Properties, Inc. (formerly New Healthpeak, Inc.) (incorporated herein by reference to Exhibit 3.1 to Healthpeak’s Current Report on Form 8-K (File No. 001-08895) filed February 10, 2023).
|
|
| |
3.2
|
|
|
Articles of Amendment of Healthpeak Properties, Inc. (formerly New Healthpeak, Inc.) (incorporated herein by reference to Exhibit 3.2 to Healthpeak’s Current Report on Form 8-K (File No. 001-08895) filed February 10, 2023).
|
|
| |
3.3
|
|
|
Amended and Restated Bylaws of Healthpeak Properties, Inc. (incorporated herein by reference to Exhibit 3.4 to Healthpeak’s Current Report on Form 8-K (File No. 001-08895) filed February 10, 2023).
|
|
| |
3.4
|
|
|
|
|
| |
3.5
|
|
|
|
|
| |
4.1
|
|
|
Form of Articles Supplementary for Preferred Stock of Healthpeak Properties, Inc. (including form of preferred stock certificate).*
|
|
| |
4.2
|
|
|
Form of Depositary Agreement.*
|
|
| |
4.3
|
|
|
Form of Depositary Receipt.*
|
|
| |
4.4
|
|
|
Form of Debt Security.*
|
|
| |
4.5
|
|
|
|
|
| |
4.6
|
|
|
Amended and Restated Indenture, dated as of February 10, 2023, among Healthpeak OP, LLC, as issuer, Healthpeak Properties, Inc., as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee.
|
|
| |
4.7
|
|
|
Form of Warrant Agreement (including form of warrant certificate).*
|
|
| |
5.1
|
|
|
|
|
| |
5.2
|
|
|
|
|
| |
8.1
|
|
|
|
|
| |
22.1
|
|
|
|
|
| |
23.1
|
|
|
|
|
| |
23.2
|
|
|
|
|
| |
23.3
|
|
|
|
|
| |
23.4
|
|
|
|
|
| |
24.1
|
|
|
|
|
| |
25.1
|
|
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A., as Trustee, for the form of Indenture, between Healthpeak Properties, Inc., as issuer, and The Bank of New York Mellon Trust Company, N.A., as trustee.
|
|
| |
25.2
|
|
|
Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A., as Trustee, for the Amended and Restated Indenture, dated as of February 10, 2023 among Healthpeak OP, LLC, as issuer, Healthpeak Properties, Inc., as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee.
|
|
| |
107
|
|
|
|
|
*
To be filed by amendment to this registration statement or incorporated by reference from documents filed or to be filed with the SEC under the Securities Exchange Act of 1934, as amended.
Item 17. Undertakings.
(a)
The undersigned registrant hereby undertakes:
(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;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of this 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 a 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and;
(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 (a)(1)(i), (a)(1)(ii) and (a)(1)(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 this 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 the 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 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), 424(b)(5), or 424(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), 415(a)(1)(vii), or 415(a)(1)(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 the 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 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 registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant 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 registrant will be a seller 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 registrant 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 registrant or used or referred to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b)
The undersigned registrant hereby undertakes 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.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that, in the opinion of the Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such 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 and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrants certify that they have reasonable grounds to believe that they meet all the requirements for filing on Form S-3 and have duly caused this registration statement to be signed on their behalves by the undersigned, thereunto duly authorized, in the city of Denver, state of Colorado, on the 10th day of February, 2023.
HEALTHPEAK PROPERTIES, INC.
By:
/s/ Scott. M. Brinker
Scott M. Brinker
President and Chief Executive Officer (Principal Executive Officer)
HEALTHPEAK OP, LLC
By:
HEALTHPEAK PROPERTIES, INC.
its managing member
By:
/s/ Scott M. Brinker
Scott M. Brinker
President and Chief Executive Officer (Principal Executive Officer)
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Scott M. Brinker, Peter A. Scott and Jeffrey H. Miller and each of them severally, as his or her true and lawful attorney-in-fact and agent, each acting alone with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments (including post-effective amendments) and exhibits to this registration statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, or his or her substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by each of the following persons in the capacities and on the dates indicated:
| |
Signature
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Scott M. Brinker
SCOTT M. BRINKER
|
|
|
President and Chief Executive Officer (Principal Executive Officer) and Director
|
|
|
February 10, 2023
|
|
| |
/s/ Peter A. Scott
PETER A. SCOTT
|
|
|
Chief Financial Officer (Principal Financial Officer)
|
|
|
February 10, 2023
|
|
| |
/s/ Shawn G. Johnston
SHAWN G. JOHNSTON
|
|
|
Executive Vice President and Chief Accounting Officer (Principal Accounting Officer)
|
|
|
February 10, 2023
|
|
| |
/s/ Brian G. Cartwright
BRIAN G. CARTWRIGHT
|
|
|
Chairman of the Board
|
|
|
February 10, 2023
|
|
| |
Signature
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ Katherine M. Sandstrom
KATHERINE M. SANDSTROM
|
|
|
Vice Chair of the Board
|
|
|
February 10, 2023
|
|
| |
/s/ Christine Garvey
CHRISTINE N. GARVEY
|
|
|
Director
|
|
|
February 10, 2023
|
|
| |
/s/ R. Kent Griffin, Jr.
R. KENT GRIFFIN, JR.
|
|
|
Director
|
|
|
February 10, 2023
|
|
| |
/s/ David B. Henry
DAVID B. HENRY
|
|
|
Director
|
|
|
February 10, 2023
|
|
| |
/s/ Sara G. Lewis
SARA G. LEWIS
|
|
|
Director
|
|
|
February 10, 2023
|
|
Exhibit 3.4
HEALTHPEAK OP, LLC
ARTICLES OF ORGANIZATION
Pursuant to Articles of Conversion
filed with the State Department of Assessments and Taxation of Maryland (the “Department”) contemporaneously herewith, under
which Healthpeak Properties Interim, Inc., a Maryland corporation, is converting to a Maryland limited liability company to be known as
Healthpeak OP, LLC, the undersigned, being authorized to execute and file these Articles of Organization (these “Articles”),
hereby forms a limited liability company on the terms and conditions hereinafter set forth, and hereby certifies to the Department as
follows:
FIRST: The member of
the limited liability company (the “Company”) has designated Peter A. Scott as an “authorized person,” as that
term is defined in §4A-101(c) of the Maryland Limited Liability Company Act (Title 4A of the Corporations
and Associations Article of the Annotated Code of Maryland, hereinafter referred
to as the “Act”), for purposes of executing and filing these Articles of Organization, and any other documents or certificates
that may be required to be filed on behalf of the Company with the Department from time to time.
SECOND: The name of the
Company is:
Healthpeak OP, LLC
THIRD: The address of
the principal office of the Company in the State of Maryland is The Corporation Trust Incorporated, 2405 York Road, Suite 201, Lutherville
Timonium, Maryland 21093-2264.
FOURTH: The name of the
resident agent of the Company in Maryland is The Corporation Trust Incorporated, whose address is 2405 York Road, Suite 201, Lutherville
Timonium, Maryland 21093-2264. The resident agent is a Maryland corporation.
FIFTH: Except as otherwise
provided by the Act, no member of the Company shall be personally liable for the obligations of the Company, whether arising in contract,
tort or otherwise, solely by reason of being a member of the Company.
SIXTH: The relations
of members of the Company and the affairs of the Company shall be governed by the Act as well as a written Operating Agreement (the “Operating
Agreement”) which may be amended from time to time as set forth therein.
SEVENTH: Pursuant to
Section 4A-401(a)(3) of the Act, the authority of members of the Company to act for the Company solely by virtue of their being members
is limited, and shall be only as set forth in the Operating Agreement of the Company.
[SIGNATURE ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the
undersigned acknowledges that these Articles are his act, and further acknowledges, under penalties for perjury, to the best of his knowledge,
information and belief, that he has been authorized by the persons forming the Company to execute these Articles and that the matters
and facts set forth herein are true in all material respects, and that he has executed these Articles as of the 8th day of February, 2023.
| |
/s/ Peter A. Scott |
(SEAL) |
| |
Peter A. Scott, Authorized Person |
|
Resident Agent Consent
The undersigned hereby consents
to act as resident agent in Maryland for Healthpeak OP, LLC, a Maryland limited liability company.
| |
The
Corporation Trust Incorporated |
| |
|
| |
By: |
/s/ Stephanie Butterfield |
| |
Name:
Stephanie Butterfield |
| |
Title:
Assistant Secretary |
Exhibit 4.5
HEALTHPEAK PROPERTIES, INC.
as Issuer,
The
Bank of New York Mellon Trust Company, N.A.
as Trustee
INDENTURE
Dated as of
DEBT SECURITIES
CONTENTS
Page
Article I
DEFINITIONS |
| |
|
| |
Section 1.01 |
Definitions |
1 |
| |
|
|
Article II
FORMS OF SECURITIES |
| |
|
| |
Section 2.01 |
Terms of the Securities |
9 |
| |
Section 2.02 |
Form of Trustee’s Certificate of Authentication |
9 |
| |
Section 2.03 |
Form of Trustee’s Certificate of Authentication by an Authenticating Agent |
10 |
| |
|
|
Article III
THE DEBT SECURITIES |
| |
|
| |
Section 3.01 |
Amount Unlimited; Issuable in Series |
10 |
| |
Section 3.02 |
Denominations |
13 |
| |
Section 3.03 |
Execution, Authentication, Delivery and Dating |
13 |
| |
Section 3.04 |
Temporary Securities |
15 |
| |
Section 3.05 |
Registrar and Paying Agent |
15 |
| |
Section 3.06 |
Transfer and Exchange |
16 |
| |
Section 3.07 |
Mutilated, Destroyed, Lost and Stolen Securities |
19 |
| |
Section 3.08 |
Payment of Interest; Interest Rights Preserved |
20 |
| |
Section 3.09 |
Cancellation |
21 |
| |
Section 3.10 |
Computation of Interest |
21 |
| |
Section 3.11 |
Currency of Payments in Respect of Securities |
21 |
| |
Section 3.12 |
Judgments |
21 |
| |
Section 3.13 |
CUSIP Numbers |
22 |
| |
|
|
Article IV
REDEMPTION OF SECURITIES |
| |
|
| |
Section 4.01 |
Applicability of Right of Redemption |
22 |
| |
Section 4.02 |
Selection of Securities to be Redeemed |
22 |
| |
Section 4.03 |
Notice of Redemption |
22 |
| |
Section 4.04 |
Deposit of Redemption Price |
23 |
| |
Section 4.05 |
Securities Payable on Redemption Date |
23 |
| |
Section 4.06 |
Securities Redeemed in Part |
24 |
| |
|
|
Article V
SINKING FUNDS |
| |
|
| |
Section 5.01 |
Applicability of Sinking Fund |
24 |
| |
Section 5.02 |
Mandatory Sinking Fund Obligation |
24 |
| |
Section 5.03 |
Optional Redemption at Sinking Fund Redemption Price |
25 |
| |
Section 5.04 |
Application of Sinking Fund Payment |
25 |
Article VI
PARTICULAR COVENANTS OF THE COMPANY |
| |
|
| |
Section 6.01 |
Payments of Securities |
26 |
| |
Section 6.02 |
Paying Agent |
26 |
| |
Section 6.03 |
To Hold Payment in Trust |
26 |
| |
Section 6.04 |
Merger, Consolidation and Sale of Assets |
28 |
| |
Section 6.05 |
Compliance Certificate |
28 |
| |
Section 6.06 |
Conditional Waiver by Holders of Securities |
28 |
| |
Section 6.07 |
Statement by Officers as to Default |
29 |
| |
Section 6.08 |
Maintenance of Insurance |
29 |
| |
|
|
Article VII
REMEDIES OF TRUSTEE AND SECURITYHOLDERS |
| |
|
| |
Section 7.01 |
Events of Default |
29 |
| |
Section 7.02 |
Acceleration; Rescission and Annulment |
30 |
| |
Section 7.03 |
Other Remedies |
32 |
| |
Section 7.04 |
Trustee as Attorney-in-Fact |
32 |
| |
Section 7.05 |
Priorities |
33 |
| |
Section 7.06 |
Control by Securityholders; Waiver of Past Defaults |
33 |
| |
Section 7.07 |
Limitation on Suits |
34 |
| |
Section 7.08 |
Undertaking for Costs |
34 |
| |
Section 7.09 |
Remedies Cumulative |
34 |
| |
|
|
Article VIII
CONCERNING THE SECURITYHOLDERS |
| |
|
| |
Section 8.01 |
Evidence of Action of Securityholders |
35 |
| |
Section 8.02 |
Proof of Execution or Holding of Securities |
35 |
| |
Section 8.03 |
Persons Deemed Owners |
36 |
| |
Section 8.04 |
Effect of Consents |
36 |
| |
|
|
Article IX
SECURITYHOLDERS’ MEETINGS |
| |
|
| |
Section 9.01 |
Purposes of Meetings |
36 |
| |
Section 9.02 |
Call of Meetings by Trustee |
37 |
| |
Section 9.03 |
Call of Meetings by Company or Securityholders |
37 |
| |
Section 9.04 |
Qualifications for Voting |
37 |
| |
Section 9.05 |
Regulation of Meetings |
37 |
| |
Section 9.06 |
Voting |
38 |
| |
Section 9.07 |
No Delay of Rights by Meeting |
38 |
| |
|
|
Article X
REPORTS BY THE COMPANY AND THE TRUSTEE AND SECURITYHOLDERS’ LISTS |
| |
|
| |
Section 10.01 |
Reports by Trustee |
38 |
| |
Section 10.02 |
Reports by the Company |
39 |
| |
Section 10.03 |
Securityholders’ Lists |
39 |
Article XI
CONCERNING THE TRUSTEE |
| |
|
| |
Section 11.01 |
Rights of Trustees; Compensation and Indemnity |
40 |
| |
Section 11.02 |
Duties of Trustee |
42 |
| |
Section 11.03 |
Notice of Defaults |
43 |
| |
Section 11.04 |
Eligibility; Disqualification |
44 |
| |
Section 11.05 |
Resignation and Notice; Removal |
44 |
| |
Section 11.06 |
Successor Trustee by Appointment |
45 |
| |
Section 11.07 |
Successor Trustee by Merger |
46 |
| |
Section 11.08 |
Right to Rely on Officer’s Certificate |
46 |
| |
Section 11.09 |
Appointment of Authenticating Agent |
47 |
| |
Section 11.10 |
Communications by Securityholders with Other Securityholders |
47 |
| |
Section 11.11 |
FATCA |
47 |
| |
|
|
Article XII
SATISFACTION AND DISCHARGE; DEFEASANCE |
| |
|
| |
Section 12.01 |
Applicability of Article |
48 |
| |
Section 12.02 |
Satisfaction and Discharge of Indenture |
48 |
| |
Section 12.03 |
Defeasance and Covenant Defeasance upon Deposit of Moneys or U.S. Government Obligations |
49 |
| |
Section 12.04 |
Repayment to Company |
51 |
| |
Section 12.05 |
Indemnity for U |
51 |
| |
Section 12.06 |
Deposits to Be Held in Escrow |
51 |
| |
Section 12.07 |
Application of Trust Money |
51 |
| |
Section 12.08 |
Deposits of Non-U |
52 |
| |
|
|
Article XIII
IMMUNITY OF CERTAIN PERSONS |
| |
|
| |
Section 13.01 |
No Personal Liability |
52 |
| |
|
|
Article XIV
SUPPLEMENTAL INDENTURES |
| |
|
| |
Section 14.01 |
Without Consent of Securityholders |
52 |
| |
Section 14.02 |
With Consent of Securityholders; Limitations |
54 |
| |
Section 14.03 |
Trustee Protected |
55 |
| |
Section 14.04 |
Effect of Execution of Supplemental Indenture |
55 |
| |
Section 14.05 |
Notation on or Exchange of Securities |
55 |
| |
Section 14.06 |
Conformity with TIA |
56 |
| |
|
|
Article XV
SUBORDINATION OF SECURITIES |
| |
|
| |
Section 15.01 |
Agreement to Subordinate |
56 |
| |
Section 15.02 |
Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities |
56 |
| |
Section 15.03 |
No Payment on Securities in Event of Default on Senior Debt |
57 |
| |
Section 15.04 |
Payments on Securities Permitted |
57 |
| |
Section 15.05 |
Authorization of Securityholders to Trustee to Effect Subordination |
58 |
| |
Section 15.06 |
Notices to Trustee |
58 |
| |
Section 15.07 |
Trustee as Holder of Senior Debt |
58 |
| |
Section 15.08 |
Modifications of Terms of Senior Debt |
59 |
| |
Section 15.09 |
Reliance on Judicial Order or Certificate of Liquidating Agent |
59 |
| |
Section 15.10 |
Satisfaction and Discharge; Defeasance and Covenant Defeasance |
59 |
| |
Section 15.11 |
Trustee Not Fiduciary for Holders of Senior Debt |
59 |
| |
|
|
Article XVI
MISCELLANEOUS PROVISIONS |
| |
|
| |
Section 16.01 |
Certificates and Opinions as to Conditions Precedent |
59 |
| |
Section 16.02 |
Trust Indenture Act Controls |
60 |
| |
Section 16.03 |
Notices to the Company and Trustee |
60 |
| |
Section 16.04 |
Notices to Securityholders; Waiver |
61 |
| |
Section 16.05 |
Legal Holiday |
62 |
| |
Section 16.06 |
Effects of Headings and Table of Contents |
62 |
| |
Section 16.07 |
Successors and Assigns |
62 |
| |
Section 16.08 |
Separability Clause |
62 |
| |
Section 16.09 |
Benefits of Indenture |
62 |
| |
Section 16.10 |
Counterparts Originals |
62 |
| |
Section 16.11 |
Governing Law; Waiver of Trial by Jury |
63 |
| |
Section 16.12 |
Submission to Jurisdiction |
63 |
| |
Section 16.13 |
Sanctions Representations |
63 |
Reconciliation and tie between
Trust Indenture Act of 1939 and Indenture*
| Trust Indenture |
|
|
| Act Section |
|
Indenture Section |
| § 310 (a) |
|
11.04(a), 16.02 |
| (b) |
|
11.01(f), 11.04(b), 11.05(1), 16.02 |
| (b)(1) |
|
11.04(b), 16.02 |
| § 311 |
|
11.01(f), 16.02 |
| § 312 |
|
14.02(d), 16.02 |
| (b) |
|
11.10, 16.02 |
| (c) |
|
11.10, 16.02 |
| § 313 (a) |
|
10.01(a), 16.02 |
| § 314 |
|
16.02 |
| § 315 (e) |
|
11.05, 16.02 |
| § 316 |
|
16.02 |
| § 317 |
|
16.02 |
| § 317 |
|
16.02 |
*This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
INDENTURE
dated as of ______________, 20_________, among Healthpeak Properties, Inc., a Maryland corporation (the “Company”), and The
Bank of New York Mellon Trust Company, N.A., a national banking association, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS,
the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of unsecured debentures, notes,
bonds or other evidences of indebtedness (the “Securities”) in an unlimited aggregate principal amount to be issued from
time to time in one or more series as provided in this Indenture; and
WHEREAS,
all things necessary to make this Indenture a valid and legally binding agreement of the Company, in accordance with its terms, have
been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
That,
in consideration of the premises and the purchase of the Securities by the Holders thereof and for the equal and proportionate benefit
of all of the present and future Holders of the Securities, each party agrees and covenants as follows:
Article
I
DEFINITIONS
For
all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a)
the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b)
unless otherwise defined in this Indenture or the context otherwise requires, all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(c)
the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision; and
(d)
references to “Article” or “Section” or other subdivision herein are references to an Article, Section
or other subdivision of this Indenture, unless the context otherwise requires.
Section
1.01 Definitions.
Unless
the context otherwise requires, the terms defined in this Section 1.01 shall for all purposes of this Indenture have the meanings hereinafter
set forth:
Affiliate:
The term “Affiliate,” with respect to any specified Person shall mean any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control”
when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.
Authenticating
Agent: The term “Authenticating Agent” shall have the meaning assigned to it in Section 11.09.
Board
of Directors: The term “Board of Directors” shall mean either the board of directors of the Company or the executive
or any other committee of that board duly authorized to act in respect hereof.
Board
Resolution: The term “Board Resolution” shall mean a copy of a resolution or resolutions certified by the Secretary or
an Assistant Secretary of the Company to have been duly adopted by the Board of Directors (or by a committee of the Board of Directors
to the extent that any such other committee has been authorized by the Board of Directors to establish or approve the matters contemplated)
and to be in full force and effect on the date of such certification and delivered to the Trustee.
Business
Day: The term “Business Day,” when used with respect to any Place of Payment or any other particular location referred
to in this Indenture or in the Securities, shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment or such other location are authorized or obligated by law or executive order to close.
Capital
Stock: The term “Capital Stock” shall mean:
(a)
in the case of a corporation, corporate stock;
(b)
in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(c)
in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests;
and
(d)
any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person,
but excluding
from all of the foregoing any debt securities convertible into Capital Stock, whether or not such debt securities include any right of
participation with Capital Stock.
Code:
The term “Code” shall mean the Internal Revenue Code of 1986, as amended.
Company:
The term “Company” shall mean the Person named as the “Company” in the first paragraph of this Indenture
until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company”
shall mean such successor Person.
Company
Order: The term “Company Order” shall mean a written order signed in the name of the Company by the Chairman of the Board
of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, the General Counsel, any Vice President, the Treasurer,
any Assistant Treasurer, the Controller, any Assistant Controller, the Corporate Secretary or any Assistant Corporate Secretary of the
Company, and delivered to the Trustee.
Corporate
Trust Office: The term “Corporate Trust Office,” or other similar term, shall mean the principal office of the Trustee
at which at any particular time its corporate trust business shall be administered, which office at the date hereof is located at 240
Greenwich Street, New York, NY 10286, Attention: Corporate Trust Unit, or such other address as the Trustee may designate from time to
time by notice to the Holders and the Company, or the principal corporate trust officer of any successor Trustee (or such other address
as such successor Trustee may designate from time to time by notice to the Holders and the Company).
Currency:
The term “Currency” shall mean U.S. Dollars or Foreign Currency.
Debt:
The term “Debt” shall mean, as of any date (without duplication), all indebtedness and liabilities for borrowed money,
secured or unsecured, of the Company and its Subsidiaries, including mortgages and other notes payable (including any Securities to the
extent outstanding from time to time), but excluding any indebtedness, including mortgages and other notes payable, which is secured
by cash, cash equivalents, or marketable securities or defeased (it being understood that cash collateral shall be deemed to include
cash deposited with a trustee with respect to third party indebtedness), Intercompany Debt and all liabilities associated with customary
exceptions to non-recourse indebtedness, such as for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy,
collusive involuntary bankruptcy and other similar exceptions. It is understood that the term “Debt” shall not include any
redeemable equity interest in the Company.
Default:
The term “Default” shall have the meaning assigned to it in Section 11.03.
Defaulted
Interest: The term “Defaulted Interest” shall have the same meaning assigned to it in Section 3.08(b).
Depositary:
The term “Depositary” shall mean, with respect to the Securities of any series issuable in whole or in part in the form
of one or more Global Securities, each Person designated as Depositary by the Company pursuant to Section 3.01 until one or more successor
Depositaries shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary”
shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary”
as used with respect to the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
Designated
Currency: The term “Designated Currency” shall have the same meaning assigned to it in Section 3.12.
Discharged:
The term “Discharged” shall have the meaning assigned to it in Section 12.03.
DTC:
The term “DTC” shall mean The Depository Trust Company, Inc. and its successors.
EDGAR:
The term “EDGAR” shall have the meaning assigned to it in Section 10.02.
Electronic
Means: The term “Electronic Means” shall mean the following communications methods: e-mail, facsimile transmission, secure
electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another
method or system specified by the Trustee as available for the use in connection with its services hereunder.
Event
of Default: The term “Event of Default” shall have the meaning specified in Section 7.01.
Exchange
Act: The term “Exchange Act” shall mean the United States Securities Exchange Act of 1934, and the rules and regulations
promulgated by the SEC thereunder and any statute successor thereto, in each case as amended from time to time.
Exchange
Rate: The term “Exchange Rate” shall have the meaning assigned to it in Section 7.01.
Floating
Rate Security: The term “Floating Rate Security” shall mean a Security that provides for the payment of interest at a
variable rate determined periodically by reference to an interest rate index specified pursuant to Section 3.01.
Foreign
Currency: The term “Foreign Currency” shall mean a currency issued by the government of any country other than the United
States or a composite currency, the value of which is determined by reference to the values of the currencies of any group of countries.
GAAP:
The term “GAAP” shall mean generally accepted accounting principles in the United States, consistently applied, as in
effect from time to time.
Global
Security: The term “Global Security” shall mean any Security that evidences all or part of a series of Securities, issued
in fully-registered certificated form to the Depositary for such series in accordance with Section 3.03 and bearing the legend prescribed
in Section 3.03(g).
Holder;
Holder of Securities: The terms “Holder” and “Holder of Securities” are defined under “Securityholder;
Holder of Securities; Holder.”
Indenture:
The term “Indenture” or “this Indenture” shall mean this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act
that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture”
shall also include the terms of particular series of Securities established as contemplated by Section 3.01; provided, however,
that if at any time more than one Person is acting as Trustee under this Indenture due to the appointment of one or more separate Trustees
for any one or more separate series of Securities, “Indenture” shall mean, with respect to such series of Securities for
which any such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of particular
series of Securities for which such Person is Trustee established as contemplated by Section 3.01, exclusive, however, of any provisions
or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered
after such person had become such Trustee, but to which such person, as such Trustee, was not a party; provided, further that
in the event that this Indenture is supplemented or amended by one or more indentures supplemental hereto which are only applicable to
certain series of Securities, the term “Indenture” for a particular series of Securities shall only include the supplemental
indentures applicable thereto.
Individual
Securities: The term “Individual Securities” shall mean the individual Securities in definitive form registered in the
name or names of Persons other than a Depositary for Global Securities or a nominee or nominees thereof.
Instructions:
The term “Instructions” shall have the meaning assigned to it in Section 16.03.
Intercompany
Debt: The term “Intercompany Debt” means, as of any date, Debt to which the only parties are the Company and any of its
Subsidiaries as of such date; provided, however, that with respect to any such Debt of which the Company is the borrower,
such Debt is subordinate in right of payment to the Securities.
Interest:
The term “interest” shall mean, unless the context otherwise requires, interest payable on any Securities, and with respect
to an Original Issue Discount Security that by its terms bears interest only after Maturity, interest payable after Maturity.
Interest
Payment Date: The term “Interest Payment Date” shall mean, with respect to any Security, the Stated Maturity of an installment
of interest on such Security.
Lien:
The term “Lien” shall mean (without duplication) any lien, mortgage, trust deed, deed of trust, deed to secure debt,
pledge, security interest, assignment for collateral purposes, deposit arrangement, or other security agreement, excluding any right
of setoff but including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially
the same economic effect as any of the foregoing, and any other like agreement granting or conveying a security interest; provided,
that, for purposes hereof, the term “Lien” shall not include any mortgage that has been defeased by the Company or any of
its Subsidiaries in accordance with the provisions thereof through the deposit of cash, cash equivalents or marketable securities (it
being understood that cash collateral shall be deemed to include cash deposited with a trustee with respect to third party indebtedness).
Mandatory
Sinking Fund Payment: The term “Mandatory Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).
Maturity:
The term “Maturity,” with respect to any Security, shall mean the date on which the principal of such Security shall
become due and payable as therein and herein provided, whether at the Stated Maturity thereof, upon acceleration, call for redemption
or otherwise.
Members:
The term “Members” shall have the meaning assigned to it in Section 3.03(i).
Officer’s
Certificate: The term “Officer’s Certificate” shall mean a certificate signed by any of the Chairman of
the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, the General Counsel, any Vice President,
the Treasurer, any Assistant Treasurer, the Controller, any Assistant Controller, the Corporate Secretary or any Assistant Corporate
Secretary of the Company and delivered to the Trustee. Each such certificate shall include the statements provided for in Section 16.01
if and to the extent required by the provisions of such Section.
Opinion
of Counsel: The term “Opinion of Counsel” shall mean an opinion in writing reasonably acceptable to the Trustee signed
by one or more legal counsel, who may be an employee of or of counsel to the Company, and that meets the requirements provided for in
Section 16.01.
Optional
Sinking Fund Payment: The term “Optional Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).
Original
Issue Discount Security: The term “Original Issue Discount Security” shall mean any Security that is issued with “original
issue discount” within the meaning of Section 1273(a) of the Code and the regulations thereunder, or any successor provision, and
any other Security designated by the Company as issued with original issue discount for United States federal income tax purposes.
Outstanding:
The term “Outstanding,” when used with respect to Securities means, as of the date of determination, all Securities theretofore
authenticated and delivered under this Indenture, except:
(a)
Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b)
Securities or portions thereof for which payment or redemption money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities or Securities as to which the Company’s obligations have
been Discharged; provided, however, that if such Securities or portions thereof are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(c)
Securities that have been paid pursuant to Section 3.07(b) or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to a Responsible
Officer of the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands such Securities
are valid obligations of the Company;
provided,
however, that in determining whether the Holders of the requisite principal amount of Securities of a series Outstanding have
performed any action hereunder, Securities owned by the Company or any other obligor upon the Securities of such series or any Affiliate
of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the
Trustee shall be protected in relying upon any such action, only Securities of such series that a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding
if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon such Securities or any Affiliate of the Company or of such other obligor. In
determining whether the Holders of the requisite principal amount of Outstanding Securities of a series have performed any action hereunder,
the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for such purpose shall be the amount
of the principal thereof that would be due and payable as of the date of such determination upon acceleration of the Maturity thereof
pursuant to Section 7.02 and the principal amount of a Security denominated in a Foreign Currency that shall be deemed to be Outstanding
for such purpose shall be the amount calculated pursuant to Section 3.11(b).
Paying
Agent: The term “Paying Agent” shall have the meaning assigned to it in Section 6.02(a).
Person:
The term “Person” shall mean any individual, corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, limited liability company or government or other entity.
Place
of Payment: The term “Place of Payment” shall mean, when used with respect to the Securities of any series, the place
or places where the principal of and premium, if any, and interest on the Securities of that series are payable as specified pursuant
to Section 3.01.
Predecessor
Security: The term “Predecessor Security” shall mean, with respect to any Security, every previous Security evidencing
all or a portion of the same Debt as that evidenced by such particular Security, and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same Debt
as the lost, destroyed or stolen Security.
Record
Date: The term “Record Date” shall mean, with respect to any interest payable on any Security on any Interest Payment
Date, any date specified in or pursuant to this Indenture or such Security as the record date for the payment of interest pursuant to
Section 3.01.
Redemption
Date: The term “Redemption Date” shall mean, when used with respect to any Security to be redeemed, in whole or in part,
the date fixed for such redemption by or pursuant to this Indenture and the terms of such Security, which, in the case of a Floating
Rate Security, unless otherwise specified pursuant to Section 3.01, shall be an Interest Payment Date only.
Redemption
Price: The term “Redemption Price,” when used with respect to any Security to be redeemed, in whole or in part, shall
mean the price at which it is to be redeemed pursuant to the terms of the applicable Security and this Indenture.
Register:
The term “Register” shall have the meaning assigned to it in Section 3.05(a).
Registrar:
The term “Registrar” shall have the meaning assigned to it in Section 3.05(a).
Responsible
Officers: The term “Responsible Officers” of the Trustee hereunder shall mean any vice president, assistant secretary,
senior associate, associate, trust officer or any other officer associated with the corporate trust department of the Trustee customarily
performing functions similar to those performed by any of the above designated officers, and also means, with respect to a particular
corporate trust matter, any other officer of the Trustee to whom such matter is referred because of such person’s knowledge of
and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.
SEC:
The term “SEC” shall mean the United States Securities and Exchange Commission, as constituted from time to time.
Security:
The term “Security” or “Securities” shall have the meaning stated in the recitals and shall more particularly
mean one or more of the Securities duly authenticated by the Trustee and delivered pursuant to the provisions of this Indenture.
Security
Custodian: The term “Security Custodian” shall mean the custodian with respect to any Global Security appointed by the
Depositary, or any successor Person thereto, and shall initially be the Trustee.
Securityholder;
Holder of Securities; Holder: The term “Securityholder” or “Holder of Securities” or “Holder,”
shall mean the Person in whose name Securities shall be registered in the Register kept for that purpose hereunder.
Senior
Debt: The term “Senior Debt” means the principal of (and premium, if any) and unpaid interest on (x) Debt of the Company,
whether outstanding on the date hereof or thereafter created, incurred, assumed or guaranteed, for money borrowed other than (a) any
Debt of the Company which when incurred, and without respect to any election under Section 1111(b) of the Federal Bankruptcy Code, was
without recourse to the Company, (b) any Debt of the Company to any of its Subsidiaries, (c) Debt to any employee of the Company, (d)
any liability for taxes, (e) Trade Payables and (f) any Debt of the Company which is expressly subordinate in right of payment to any
other Debt of the Company, and (y) renewals, extensions, modifications and refundings of any such Debt. For purposes of the foregoing
and the definition of “Senior Debt,” the phrase “subordinated in right of payment” means debt subordination only
and not lien subordination, and accordingly, (i) unsecured indebtedness shall not be deemed to be subordinated in right of payment to
secured indebtedness merely by virtue of the fact that it is unsecured, and (ii) junior liens, second liens and other contractual arrangements
that provide for priorities among Holders of the same or different issues of indebtedness with respect to any collateral or the proceeds
of collateral shall not constitute subordination in right of payment. This definition may be modified or superseded by a supplemental
indenture.
Special
Record Date: The term “Special Record Date” shall have the meaning assigned to it in Section 3.08(b)(i).
Stated
Maturity: The term “Stated Maturity” when used with respect to any Security or any installment of interest thereon, shall
mean the date specified in such Security or pursuant to Section 3.01 hereof with respect to such Security as the fixed date on which
the principal (or any portion thereof) of or premium, if any, on such Security or such installment of interest is due and payable.
Subsidiary:
The term “Subsidiary” shall mean, with respect to any Person, a corporation, partnership association, joint venture,
trust, limited liability company or other business entity which is required to be consolidated with such Person in accordance with GAAP.
Successor
Company: The term “Successor Company” shall have the meaning assigned to it in Section 3.06(i).
Trade
Payables: The term “Trade Payables” means accounts payable or any other Debt or monetary obligations to trade creditors
created or assumed by the Company or any Subsidiary of the Company in the ordinary course of business (including guarantees thereof or
instruments evidencing such liabilities).
Trust
Indenture Act; TIA: The term “Trust Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations thereunder as in effect on the date of this Indenture, except as provided in Section 14.06 and
except to the extent any amendment to the Trust Indenture Act expressly provides for application of the Trust Indenture Act as in effect
on another date.
Trustee:
The term “Trustee” shall mean the Person named as the “Trustee” in the first paragraph of this Indenture
until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions
of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at
any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the
Trustee with respect to Securities of that series.
U.S.
Dollars: The term “U.S. Dollars” shall mean such currency of the United States as at the time of payment shall be legal
tender for the payment of public and private debts.
U.S.
Government Obligations: The term “U.S. Government Obligations” shall have the meaning assigned to it in Section 12.03.
United
States: The term “United States” shall mean the United States of America (including the States and the District of Columbia),
its territories and its possessions and other areas subject to its jurisdiction.
Article
II
FORMS
OF SECURITIES
Section
2.01 Terms of the Securities.
(a)
The Securities of each series shall be substantially in the form set forth in an Officer’s Certificate or in one or more
indentures supplemental hereto, and shall have such appropriate insertions, omissions, substitutions and other variations as are required
or permitted by this Indenture, and may have such letters, numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or
as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange on which any series of the Securities may be listed or of any automated quotation system on which any such series
may be quoted, or to conform to usage, all as determined by any of the officers executing such Securities as conclusively evidenced by
their execution of such Securities.
(b)
The terms and provisions of the Securities shall constitute, and are hereby expressly made, a part of this Indenture, and, to
the extent applicable, the Company and the Trustee, by their execution and delivery of this Indenture expressly agree to such terms and
provisions and to be bound thereby.
Section
2.02 Form of Trustee’s
Certificate of Authentication.
(a)
Only such of the Securities as shall bear thereon a certificate substantially in the form of the Trustee’s certificate of
authentication hereinafter recited, executed by the Trustee by manual, facsimile or electronic signature, shall be valid or become obligatory
for any purpose or entitle the Holder thereof to any right or benefit under this Indenture.
(b)
Each Security shall be dated the date of its authentication, except that any Global Security shall be dated as of the date specified
as contemplated in Section 3.01(q).
(c)
The form of the Trustee’s certificate of authentication to be borne by the Securities shall be substantially as follows:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| | The Bank of New York Mellon Trust Company, N.A.,
as Trustee |
| | |
| By: | |
| | | Authorized Signatory |
Section
2.03 Form of Trustee’s
Certificate of Authentication by an Authenticating Agent. If at any time there shall be an Authenticating Agent appointed with respect
to any series of Securities, then the Trustee’s Certificate of Authentication by such Authenticating Agent to be borne by Securities
of each such series shall be substantially as follows:
TRUSTEE’S
CERTIFICATE OF AUTHENTICATION
This
is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| | The Bank of New York Mellon Trust Company, N.A.,
as Trustee |
| | |
| By: | [NAME
OF AUTHENTICATING AGENT] |
| | | as Authenticating Agent |
| | | |
| | By: | |
| | | Authorized Signatory |
Article
III
THE DEBT SECURITIES
Section
3.01 Amount Unlimited; Issuable
in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. The title and terms of each series of Securities shall be as set forth in or determined
pursuant to an Officer’s Certificate or in one or more indentures supplemental hereto, prior to the issuance of Securities of any
series, which shall set forth such of the following as are applicable to the Securities of such series:
(a)
the title of the Securities of the series (which shall distinguish the Securities of such series from the Securities of all other
series, except to the extent that additional Securities of an existing series are being issued);
(b)
any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon transfer of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 3.04, 3.06, 3.07, 4.06, or 14.05);
(c)
the dates on which or periods during which the Securities of the series may be issued, and the dates on, or the range of dates
within, which the principal of and premium, if any, on the Securities of such series are or may be payable or the method by which such
date or dates shall be determined or extended;
(d)
the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates
shall be determined, whether such interest shall be payable in cash or additional Securities of the same series or shall accrue and increase
the aggregate principal amount outstanding of such series (including if such Securities were originally issued at a discount), the date
or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates
on which any such interest shall be payable, and the Record Dates for the determination of Holders to whom interest is payable on such
Interest Payment Dates or the method by which such date or dates shall be determined, the right, if any, to extend or defer interest
payments and the duration of such extension or deferral;
(e)
if other than U.S. Dollars, the Foreign Currency in which Securities of the series shall be denominated or in which payment of
the principal of, premium, if any, or interest on the Securities of the series shall be payable and any other terms concerning such payment;
(f)
if the amount of payment of principal of, premium, if any, or interest on the Securities of the series may be determined with
reference to an index, formula or other method including, but not limited to, an index based on a Currency or Currencies other than that
in which the Securities are stated to be payable, the manner in which such amounts shall be determined;
(g)
if the principal of, premium, if any, or interest on Securities of the series are to be payable, at the election of the Company
or a Holder thereof, in a Currency other than that in which the Securities are denominated or stated to be payable without such election,
the period or periods within which, and the terms and conditions upon which, such election may be made and the time and the manner of
determining the exchange rate between the Currency in which the Securities are denominated or payable without such election and the Currency
in which the Securities are to be paid if such election is made;
(h)
the place or places, if any, in addition to or instead of the Corporate Trust Office of the Trustee where the principal of, premium,
if any, and interest on Securities of the series shall be payable, and where Securities of any series may be presented for registration
of transfer, exchange or conversion, and the place or places where notices and demands to or upon the Company in respect of the Securities
of such series may be made;
(i)
the price or prices at which, the period or periods within which or the date or dates on which, and the terms and conditions upon
which Securities of the series may be redeemed, in whole or in part, at the option of the Company, if the Company is to have that option;
(j)
the obligation or right, if any, of the Company to redeem, purchase or repay Securities of the series pursuant to any sinking
fund, amortization or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or periods
within which or the date or dates on which, the Currency or Currencies in which and the terms and conditions upon which Securities of
the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(k)
if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which Securities
of the series shall be issuable;
(l)
if other than the principal amount thereof, the portion of the principal amount of the Securities of the series which shall be
payable upon acceleration of the Maturity thereof pursuant to Section 7.02 (to the extent not otherwise specified in such section);
(m)
the guarantors, if any, of the Securities of the series, and the extent of the guarantees (including provisions relating to seniority,
subordination, and the release of the guarantors), if any, and any additions or changes to permit or facilitate guarantees of such Securities;
(n)
whether the Securities of the series are to be issued as Original Issue Discount Securities and the amount of discount with which
such Securities may be issued;
(o)
if the provisions of Article XII hereof shall not be applicable with respect to the Securities of such series; or any addition
to or change in the provisions of Article XII and, if the Securities of any series are payable in a Currency other than U.S. Dollars,
the Currency or the nature of the government obligations to be deposited with the Trustee pursuant to Section 12.08;
(p)
whether the Securities of the series are to be issued in whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Security or Global Securities;
(q)
the date as of which any Global Security of the series shall be dated if other than the original issuance of the first Security
of the series to be issued;
(r)
if the Securities of the series are to be convertible into or exchangeable for any securities or property of any Person (including
the Company), the terms and conditions upon which such Securities will be so convertible or exchangeable, and any additions or changes,
if any, to permit or facilitate such conversion or exchange;
(s)
whether the Securities of such series are subject to subordination and the terms of such subordination (for purposes of clarity,
it is hereby understood and agreed that, unless the Securities of such series are expressly stated to be subject to subordination, Article
XV shall not be applicable with respect to the Securities of such series);
(t)
whether the Securities of such series are to be secured and the terms of such security;
(u)
any restriction or condition on the transferability of the Securities of such series;
(v)
any addition or change in the provisions related to compensation and reimbursement of the Trustee which applies to Securities
of such series;
(w)
any addition or change in the provisions related to supplemental indentures set forth in Sections 14.01, 14.02 and 14.04 which
applies to Securities of such series;
(x)
provisions, if any, granting special rights to Holders upon the occurrence of specified events;
(y)
any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 7.02
and any addition or change in the provisions set forth in Article VII which applies to Securities of the series;
(z)
any addition to or change in the covenants set forth in Article VI which applies to Securities of the series; and
(aa)
any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of the TIA, but may
modify, amend, supplement or delete any of the terms of this Indenture with respect to such series).
(bb)
All Securities of any one series shall be substantially identical, except as to denomination and except as may otherwise be provided
herein or set forth in an Officer’s Certificate or in one or more indentures supplemental hereto. Unless otherwise specified with
respect to the Securities of any series pursuant to this Section 3.01, the Company may, at its option, at any time and from time to time,
re-open any series of Securities previously issued under this Indenture and issue additional Securities of such series, all of which
together shall constitute a single series of Securities under this Indenture; provided that, unless otherwise specified pursuant
to this Section 3.01 with respect to a series of Securities, no additional Securities of any series may be issued if an Event of Default
has occurred and is continuing with respect to such series. Any such re-opening and the terms thereof (including, without limitation,
the principal amount of the additional Securities of such series to be so issued) shall be set forth in an Officer’s Certificate
or one or more indentures supplemental hereto delivered to the Trustee prior to the issuance of any such additional Securities of such
series.
Section
3.02 Denominations. In
the absence of any specification pursuant to Section 3.01 with respect to Securities of any series, the Securities of such series shall
be issuable only as Securities in denominations of $2,000 and any integral multiple of $1,000 in excess thereof, and shall be payable
only in U.S. Dollars.
Section
3.03 Execution, Authentication,
Delivery and Dating.
(a)
The Securities shall be executed in the name and on behalf of the Company by the manual, facsimile or electronic signature of
its Chairman of the Board of Directors, its Chief Executive Officer, its President, its Chief Financial Officer, its General Counsel,
any of its Vice Presidents or its Treasurer. If the Person whose signature is on a Security no longer holds that office at the time the
Security is authenticated and delivered, the Security shall nevertheless be valid.
(b)
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any
series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of
such Securities and, if required pursuant to Section 3.01, a supplemental indenture or Officer’s Certificate setting forth the
terms of the Securities of a series. The Trustee shall thereupon authenticate and deliver such Securities without any further action
by the Company. The Company Order shall specify the amount of Securities to be authenticated and the date on which the original issue
of Securities is to be authenticated.
(c)
In authenticating the first Securities of any series and accepting the additional responsibilities under this Indenture in relation
to such Securities the Trustee shall receive, and (subject to Section 11.02) shall be fully protected in relying upon an Officer’s
Certificate and an Opinion of Counsel, each prepared in accordance with Section 16.01 stating that the conditions precedent, if any,
provided for in the Indenture have been complied with. The Opinion of Counsel shall also state that the Securities have been duly authorized
by all necessary corporate action on the part of the Company, duly executed and delivered to the extent such execution and delivery are
governed by the laws of the State of New York and are valid and binding obligations of the Company enforceable against the Company in
accordance with their terms under the laws of the State of New York. The Opinion of Counsel shall further state that the form and terms
of the Securities have been established in conformity with this Indenture.
(d)
The Trustee shall have the right to decline to authenticate and deliver the Securities under this Section 3.03 if the issue of
the Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
(e)
Each Security shall be dated the date of its authentication, except as otherwise provided pursuant to Section 3.01 with respect
to the Securities of such series.
(f)
If the Company shall establish pursuant to Section 3.01 that the Securities of a series are to be issued in whole or in part
in the form of one or more Global Securities, then the Company shall execute and the Trustee shall authenticate and deliver one or more
Global Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the Outstanding Securities
of such series to be represented by such Global Securities, (ii) shall be registered, if in registered form, in the name of the Depositary
for such Global Security or Global Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary
or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially to the following effect:
“THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY
OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY
FOR ALL PURPOSES. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY] TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF [THE NOMINEE OF THE DEPOSITARY]
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY] (AND ANY PAYMENT HEREON IS MADE TO [THE NOMINEE
OF THE DEPOSITARY] OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY]), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, [THE NOMINEE OF THE DEPOSITARY],
HAS AN INTEREST HEREIN.
TRANSFERS
OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR
BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
The
aggregate principal amount of each Global Security may from time to time be increased or decreased by adjustments made on the records
of the Security Custodian, as provided in this Indenture.
(g)
Each Depositary designated pursuant to Section 3.01 for a Global Security in registered form must, at the time of its designation
and at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable
statute or regulation.
(h)
Members of, or participants in, the Depositary (“Members”) shall have no rights under this Indenture with respect
to any Global Security held on their behalf by the Depositary or by the Security Custodian under such Global Security, and the Depositary
may be treated by the Company, the Trustee, the Paying Agent and the Registrar and any of their agents as the absolute owner of such
Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, the
Paying Agent or the Registrar or any of their agents from giving effect to any written certification, proxy or other authorization furnished
by the Depositary or impair, as between the Depositary and its Members, the operation of customary practices of the Depositary governing
the exercise of the rights of an owner of a beneficial interest in any Global Security. The Holder of a Global Security may grant proxies
and otherwise authorize any Person, including Members and Persons that may hold interests through Members, to take any action that a
Holder is entitled to take under this Indenture or the Securities.
(i)
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in one of the forms provided for herein duly executed by the Trustee or
by an Authenticating Agent by manual, facsimile or electronic signature of an authorized signatory of the Trustee or such Authenticating
Agent, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture.
Section
3.04 Temporary Securities.
(a)
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise reproduced, in
any authorized denominations, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered
form and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities. Any such temporary Security may be in the form of one or
more Global Securities, representing all or a portion of the Outstanding Securities of such series. Every such temporary Security shall
be executed by the Company and shall be authenticated and delivered by the Trustee upon the same conditions and in substantially the
same manner, and with the same effect, as the definitive Security or Securities in lieu of which it is issued.
(b)
If temporary Securities of any series are issued, the Company will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of such temporary Securities at the office or agency of the Company in a Place
of Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of
any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of the same series of authorized denominations and of like tenor. Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
(c)
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the Individual Securities
represented thereby pursuant to this Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed by the Trustee to
reflect the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall
be reduced for all purposes by the amount so exchanged and endorsed.
Section
3.05 Registrar and Paying Agent.
(a)
The Company will keep, at an office or agency to be maintained by it in a Place of Payment where Securities may be presented for
registration or presented and surrendered for registration of transfer or of exchange, and where Securities of any series that are convertible
or exchangeable may be surrendered for conversion or exchange, as applicable (the “Registrar”), a security register for the
registration and the registration of transfer or of exchange of the Securities (the registers maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Register”),
as in this Indenture provided, which Register shall at all reasonable times be open for inspection by the Trustee. Such Register shall
be in written form or in any other form capable of being converted into written form within a reasonable time. The Company may have one
or more co-Registrars; the term “Registrar” includes any co-registrar.
(b)
The Company shall enter into an appropriate agency agreement with any Registrar or co-Registrar not a party to this Indenture.
The agreement shall implement the provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the
name and address of each such agent. If the Company fails to maintain a Registrar for any series, the Trustee shall act as such and shall
be entitled to appropriate compensation therefor pursuant to Section 11.01. The Company or any Affiliate thereof may act as Registrar,
co-Registrar or transfer agent.
(c)
The Company hereby appoints the Trustee at its Corporate Trust Office as Registrar in connection with the Securities and this
Indenture, until such time as another Person is appointed as such.
Section
3.06 Transfer and Exchange.
(a)
Transfer.
(i)
Upon surrender for registration of transfer of any Security of any series at the Registrar the Company shall execute, and the
Trustee or any Authenticating Agent shall authenticate and deliver, in the name of the designated transferee, one or more new Securities
of the same series for like aggregate principal amount of any authorized denomination or denominations. The transfer of any Security
shall not be valid as against the Company or the Trustee unless registered at the Registrar at the request of the Holder, or at the request
of his, her or its attorney duly authorized in writing.
(ii)
Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for the Individual Securities
represented thereby, a Global Security representing all or a portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor
Depositary.
(b)
Exchange.
(i)
At the option of the Holder, Securities of any series (other than a Global Security, except as set forth below) may be exchanged
for other Securities of the same series for like aggregate principal amount of any authorized denomination or denominations, upon surrender
of the Securities to be exchanged at the Registrar.
(ii)
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee or an Authenticating Agent
shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive.
(c)
Exchange of Global Securities for Individual Securities. Except as provided below, owners of beneficial interests in Global Securities
will not be entitled to receive Individual Securities.
(i)
Individual Securities shall be issued to all owners of beneficial interests in a Global Security in exchange for such interests
if: (A) at any time the Depositary for the Securities of a series provides reasonable notice to the Company that it is unwilling or unable
to continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall
no longer be eligible under Section 3.03(h) and, in each case, a successor Depositary is not appointed by the Company within 90 days
of such notice or of the Company becoming aware of such ineligibility, as the case may be, or (B) the Company executes and delivers to
the Trustee and the Registrar an Officer’s Certificate stating that such Global Security shall be so exchangeable. In connection
with the exchange of an entire Global Security for Individual Securities pursuant to this subsection (c), such Global Security shall
be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee, upon receipt of a Company
Order for the authentication and delivery of Individual Securities of such series, will authenticate and deliver to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in such Global Security, an equal aggregate principal amount of
Individual Securities of authorized denominations.
(ii)
The owner of a beneficial interest in a Global Security will be entitled to receive an Individual Security in exchange for such
interest if an Event of Default has occurred and is continuing. Upon receipt by the Security Custodian and Registrar of instructions
from the Holder of a Global Security directing the Security Custodian and Registrar to (x) issue one or more Individual Securities in
the amounts specified to the owner of a beneficial interest in such Global Security and (y) debit or cause to be debited an equivalent
amount of beneficial interest in such Global Security, subject to the rules and regulations of the Depositary:
(A)
the Security Custodian and Registrar shall notify the Company and the Trustee of such instructions, identifying the owner and
amount of such beneficial interest in such Global Security;
(B)
the Company shall promptly execute and the Trustee, upon receipt of a Company Order for the authentication and delivery of Individual
Securities of such series, shall authenticate and deliver to such beneficial owner Individual Securities in an equivalent amount to such
beneficial interest in such Global Security; and
(C)
the Security Custodian and Registrar shall decrease such Global Security by such amount in accordance with the foregoing. In the
event that the Individual Securities are not issued to each such beneficial owner promptly after the Registrar has received a request
from the Holder of a Global Security to issue such Individual Securities, the Company expressly acknowledges, with respect to the right
of any Holder to pursue a remedy pursuant to Section 7.07 hereof, the right of any beneficial Holder of Securities to pursue such remedy
with respect to the portion of the Global Security that represents such beneficial Holder’s Securities as if such Individual Securities
had been issued.
(iii)
If specified by the Company pursuant to Section 3.01 with respect to a series of Securities, the Depositary for such series of
Securities may surrender a Global Security for such series of Securities in exchange in whole or in part for Individual Securities of
such series on such terms as are acceptable to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee
shall authenticate and deliver, without service charge,
(A)
to each Person specified by such Depositary a new Individual Security or new Individual Securities of the same series, of any
authorized denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial
interest in the Global Security; and
(B)
to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of Individual Securities delivered to Holders thereof.
(iv)
In any exchange provided for in clauses (i) through (iii), the Company will execute and the Trustee will authenticate and deliver
Individual Securities in registered form in authorized denominations.
(v)
Upon the exchange in full of a Global Security for Individual Securities, such Global Security shall be canceled by the Trustee.
Individual Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are
so registered.
(d)
All Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Company evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered for such registration of transfer
or exchange.
(e)
Every Security presented or surrendered for registration of transfer, or for exchange or payment shall (if so required by the
Company, the Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form
satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder thereof or by his, her or its attorney duly authorized
in writing.
(f)
No service charge will be made for any registration of transfer or exchange of Securities. The Company or the Trustee may require
payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration
of transfer or exchange of Securities, other than those expressly provided in this Indenture to be made at the Company’s own expense
or without expense or charge to the Holders and other than those made pursuant to Sections 3.04, 4.06 or 14.05 hereof.
(g)
The Company shall not be required to (i) register, transfer or exchange Securities of any series during a period beginning at
the opening of business 15 days before the day of the transmission of a notice of redemption of Securities of such series selected for
redemption under Section 4.03 and ending at the close of business on the day of such transmission, or (ii) register, transfer or exchange
any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(h)
In case a successor Company (“Successor Company”) has executed an indenture supplemental hereto with the Trustee pursuant
to Section 6.04, any of the Securities theretofore authenticated or delivered may, from time to time, at the request of the Successor
Company, be exchanged for other Securities executed in the name of the Successor Company with such changes in phraseology and form as
may be appropriate, but otherwise identical to the Securities surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Order of the Successor Company, shall authenticate and deliver Securities as specified in such order for the purpose of
such exchange. If Securities shall at any time be authenticated and delivered in any new name of a Successor Company pursuant to this
Section 3.06 in exchange or substitution for or upon registration of transfer of any Securities, such Successor Company, at the option
of the Holders but without expense to them, shall provide for the exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
(i)
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security other than to require
delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required
by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements
hereof.
(j)
Neither the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.
Section
3.07 Mutilated, Destroyed,
Lost and Stolen Securities.
(a)
If (i) any mutilated Security is surrendered to the Trustee at its Corporate Trust Office or (ii) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any Security, and there is delivered to the Company and the
Trustee security or indemnity satisfactory to them to save each of them and any Paying Agent harmless, and neither the Company nor the
Trustee receives notice that such Security has been acquired by a protected purchaser, then the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security,
a new Security of the same series and of like tenor, form, terms and principal amount, bearing a number not contemporaneously outstanding,
such that neither gain nor loss in interest shall result from such exchange or substitution.
(b)
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay the amount due on such Security in accordance with its terms.
(c)
Upon the issuance of any new Security under this Section, the Company may require the payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in respect thereto and any other expenses (including the fees and expenses of the
Trustee) connected therewith.
(d)
Every new Security of any series issued pursuant to this Section shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
(e)
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section
3.08 Payment of Interest; Interest
Rights Preserved.
(a)
Interest on any Security that is payable and is punctually paid or duly provided for on any Interest Payment Date shall be paid
to the Person in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Record
Date for such interest notwithstanding the cancellation of such Security upon any transfer or exchange subsequent to the Record Date.
Payment of interest on Securities shall be made at the Corporate Trust Office (except as otherwise specified pursuant to Section 3.01)
or, at the option of the Company, by check mailed to the address of the Person entitled thereto as such address shall appear in the Register
or, in accordance with arrangements satisfactory to the Trustee, by wire transfer to an account designated by the Holder.
(b)
Any interest on any Security that is payable but is not punctually paid or duly provided for on any Interest Payment Date (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Record Date by virtue of his,
her or its having been such a Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below:
(i)
The Company may elect to make payment of any Defaulted Interest to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest (a
“Special Record Date”), which shall be fixed in the following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time
the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 calendar days
and not less than 10 calendar days prior to the date of the proposed payment and not less than 10 calendar days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in
the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor to be mailed, first-class postage prepaid, to the Holders of such Securities at their addresses as they appear in the Register,
not less than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities
(or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (ii).
(ii)
The Company may make payment of any Defaulted Interest on Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
(c)
Subject to the provisions set forth herein relating to Record Dates, each Security delivered pursuant to any provision of this
Indenture in exchange or substitution for, or upon registration of transfer of, any other Security shall carry all the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.09
Cancellation. Unless otherwise specified pursuant to Section 3.01 for Securities of any series, all Securities surrendered
for payment, redemption, registration of transfer or exchange or credit against any sinking fund or otherwise shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee for cancellation and shall be promptly canceled by it and, if surrendered
to the Trustee, shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled
as provided in this Section, except as expressly permitted by this Indenture. The Trustee shall dispose of all canceled Securities held
by it in accordance with its then customary procedures and deliver a certificate of such disposal to the Company upon its request therefor.
The acquisition of any Securities by the Company shall not operate as a redemption or satisfaction of the Debt represented thereby unless
and until such Securities are surrendered to the Trustee for cancellation.
Section 3.10
Computation of Interest. Except as otherwise specified pursuant to Section 3.01 for Securities of any series, interest on
the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11
Currency of Payments in Respect of Securities.
(a)
Except as otherwise specified pursuant to Section 3.01 for Securities of any series, payment of the principal of and premium, if
any, and interest on Securities of such series will be made in U.S. Dollars.
(b)
For purposes of any provision of the Indenture where the Holders of Outstanding Securities may perform an action that requires
that a specified percentage of the Outstanding Securities of all series perform such action and for purposes of any decision or determination
by the Trustee of amounts due and unpaid for the principal of and premium, if any, and interest on the Securities of all series in respect
of which moneys are to be disbursed ratably, the principal of and premium, if any, and interest on the Outstanding Securities denominated
in a Foreign Currency will be the amount in U.S. Dollars based upon exchange rates, determined as specified pursuant to Section 3.01 for
Securities of such series, as of the date for determining whether the Holders entitled to perform such action have performed it or as
of the date of such decision or determination by the Trustee, as the case may be.
(c)
Any decision or determination to be made regarding exchange rates shall be made by an agent appointed by the Company; provided,
that such agent shall accept such appointment in writing and the terms of such appointment shall, in the opinion of the Company at the
time of such appointment, require such agent to make such determination by a method consistent with the method provided pursuant to Section
3.01 for the making of such decision or determination. All decisions and determinations of such agent regarding exchange rates shall,
in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee and all Holders
of the Securities.
Section 3.12
Judgments. The Company may provide pursuant to Section 3.01 for Securities of any series that (a) the obligation, if any,
of the Company to pay the principal of, premium, if any, and interest on the Securities of any series in a Foreign Currency or U.S. Dollars
(the “Designated Currency”) as may be specified pursuant to Section 3.01 is of the essence and agrees that, to the fullest
extent possible under applicable law, judgments in respect of such Securities shall be given in the Designated Currency; (b) the obligation
of the Company to make payments in the Designated Currency of the principal of and premium, if any, and interest on such Securities shall,
notwithstanding any payment in any other Currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of
the amount in the Designated Currency that the Holder receiving such payment may, in accordance with normal banking procedures, purchase
with the sum paid in such other Currency (after any premium and cost of exchange) on the business day in the country of issue of the
Designated Currency or in the international banking community (in the case of a composite currency) immediately following the day on
which such Holder receives such payment; (c) if the amount in the Designated Currency that may be so purchased for any reason falls short
of the amount originally due, the Company shall pay such additional amounts as may be necessary to compensate for such shortfall; and
(d) any obligation of the Company not discharged by such payment shall be due as a separate and independent obligation and, until discharged
as provided herein, shall continue in full force and effect.
Section 3.13
CUSIP Numbers. The Company in issuing any Securities may use CUSIP, ISIN or other similar numbers, if then generally in
use, and thereafter with respect to such series, the Trustee may use such numbers in any notice of redemption or exchange with respect
to such series provided that any such notice may state that no representation is made as to the correctness of such numbers either
as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company
will promptly notify the Trustee in writing of any change in the CUSIP, ISIN or other similar numbers.
Article
IV
REDEMPTION OF SECURITIES
Section 4.01
Applicability of Right of Redemption. Redemption of Securities (other than pursuant to a sinking fund, amortization or analogous
provision) permitted by the terms of any series of Securities shall be made (except as otherwise specified pursuant to Section 3.01 for
Securities of any series) in accordance with this Article; provided, however, that if any such terms of a series of Securities
shall conflict with any provision of this Article, the terms of such series shall govern.
Section 4.02
Selection of Securities to be Redeemed.
(a)
If the Company shall at any time elect to redeem all or any portion of the Securities of a series then Outstanding, it shall at
least 35 days prior to the Redemption Date fixed by the Company (unless a shorter period shall be satisfactory to the Trustee) notify
the Trustee of such Redemption Date and of the principal amount of Securities to be redeemed, and thereupon the Trustee shall, in accordance
with the procedures of the Depositary, select, by lot or in such other manner which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series; provided that the unredeemed portion of the principal amount of
any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
In any case where more than one Security of such series is registered in the same name, the Trustee may treat the aggregate principal
amount so registered as if it were represented by one Security of such series. The Trustee shall, as soon as practicable, notify the Company
in writing of the Securities and portions of Securities so selected.
(b)
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security
that has been or is to be redeemed. If the Company shall so direct, Securities registered in the name of the Company, any Affiliate or
any Subsidiary thereof shall not be included in the Securities selected for redemption.
Section 4.03
Notice of Redemption.
(a) Notice
of redemption shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the
Company, not less than 30 nor more than 60 days prior to the Redemption Date (unless a shorter period shall be satisfactory to the
Trustee), to the Holders of Securities of any series to be redeemed in whole or in part pursuant to this Article, in the manner
provided in Section 16.04. Any notice so given shall be conclusively presumed to have been duly given, whether or not the Holder
receives such notice. Failure to give such notice, or any defect in such notice to the Holder of any Security of a series designated
for redemption, in whole or in part, shall not affect the sufficiency of any notice of redemption with respect to the Holder of any
other Security of such series.
(b)
All notices of redemption shall identify the Securities to be redeemed (including CUSIP, ISIN or other similar numbers, if available,
along with the statement in Section 3.13) and shall state:
(i)
such election by the Company to redeem Securities of such series pursuant to provisions contained in this Indenture or the terms
of the Securities of such series or a supplemental indenture establishing such series, if such be the case;
(ii)
the Redemption Date;
(iii)
the Redemption Price;
(iv)
if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the Securities of such series to be redeemed;
(v)
that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed, and that,
if applicable, interest thereon shall cease to accrue on and after said date;
(vi)
the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price; and
(vii)
that the redemption is for a sinking fund, if such is the case;
Section 4.04
Deposit of Redemption Price. On or prior to 11:00 a.m., New York City time, on the Redemption Date for any Securities, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 6.03) an amount of money in the Currency in which such Securities are denominated (except as provided
pursuant to Section 3.01) sufficient to pay the Redemption Price of such Securities or any portions thereof that are to be redeemed on
that date.
Section 4.05
Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, any Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price and from and after such date (unless the Company shall Default
in the payment of the Redemption Price) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the Company at the Redemption Price; provided, however, that
(unless otherwise provided pursuant to Section 3.01) installments of interest that have a Stated Maturity on or prior to the Redemption
Date for such Securities shall be payable according to the terms of such Securities and the provisions of Section 3.08.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal thereof and premium, if any, thereon shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security or, if no rate is prescribed therefor in the Security, at the
rate of interest otherwise borne by such Security.
Section 4.06
Securities Redeemed in Part. Any Security that is to be redeemed only in part shall be surrendered at the Corporate Trust Office
or such other office or agency of the Company as is specified in the notice of redemption with, if the Company, the Registrar or the
Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company, the Registrar and the
Trustee duly executed by the Holder thereof or his, her or its attorney duly authorized in writing, and the Company shall execute, and
the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the
same series, of like tenor and form, of any authorized denomination as requested by such Holder in aggregate principal amount equal to
and in exchange for the unredeemed portion of the principal of the Security so surrendered; except that if a Global Security is so surrendered,
the Company shall execute, and the Trustee shall authenticate and deliver to the Depositary for such Global Security, without service
charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security
so surrendered. In the case of a Security providing appropriate space for such notation, at the option of the Holder thereof, the Trustee,
in lieu of delivering a new Security or Securities as aforesaid, may make a notation on such Security of the payment of the redeemed
portion thereof.
Article
V
SINKING FUNDS
Section 5.01
Applicability of Sinking Fund.
(a)
Redemption of Securities permitted or required pursuant to a sinking fund for the retirement of Securities of a series by the terms
of such series of Securities shall be made in accordance with such terms of such series of Securities and this Article, except as otherwise
specified pursuant to Section 3.01 for Securities of such series, provided, however, that if any such terms of a series
of Securities shall conflict with any provision of this Article, the terms of such series shall govern.
(b)
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a
“Mandatory Sinking Fund Payment,” and any payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an “Optional Sinking Fund Payment.” If provided for by the terms of Securities of any
series, the cash amount of any Mandatory Sinking Fund Payment may be subject to reduction as provided in Section 5.02.
Section 5.02
Mandatory Sinking Fund Obligation. The Company may, at its option, satisfy any Mandatory Sinking Fund Payment obligation,
in whole or in part, with respect to a particular series of Securities by (a) delivering to the Trustee Securities of such series in transferable
form theretofore purchased or otherwise acquired by the Company or redeemed at the election of the Company pursuant to Article IV or (b)
receiving credit for Securities of such series (not previously so credited) acquired by the Company and theretofore delivered to the Trustee.
The Trustee shall credit such Mandatory Sinking Fund Payment obligation with an amount equal to the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount of such Mandatory Sinking Fund Payment shall be reduced
accordingly. If the Company shall elect to so satisfy any Mandatory Sinking Fund Payment obligation, it shall deliver to the Trustee not
less than 45 days prior to the relevant sinking fund payment date an Officer’s Certificate, which shall designate the Securities
(and portions thereof, if any) so delivered or credited and which shall be accompanied by such Securities (to the extent not theretofore
delivered) in transferable form. In case of the failure of the Company, at or before the time so required, to give such notice and deliver
such Securities the Mandatory Sinking Fund Payment obligation shall be paid entirely in moneys.
Section 5.03
Optional Redemption at Sinking Fund Redemption Price. In addition to the sinking fund requirements of Section 5.02, to the extent,
if any, provided for by the terms of a particular series of Securities, the Company may, at its option, make an Optional Sinking Fund
Payment with respect to such Securities. Unless otherwise provided by such terms, (a) to the extent that the right of the Company to
make such Optional Sinking Fund Payment shall not be exercised in any year, it shall not be cumulative or carried forward to any subsequent
year, and (b) such optional payment shall operate to reduce the amount of any Mandatory Sinking Fund Payment obligation as to Securities
of the same series. If the Company intends to exercise its right to make such optional payment in any year it shall deliver to the Trustee
not less than 45 days prior to the relevant sinking fund payment date an Officer’s Certificate stating that the Company will exercise
such optional right, and specifying the amount which the Company will pay on or before the next succeeding sinking fund payment date.
Such Officer’s Certificate shall also state that no Event of Default has occurred and is continuing.
Section 5.04
Application of Sinking Fund Payment.
(a)
If the sinking fund payment or payments made in funds pursuant to either Section 5.02 or 5.03 with respect to a particular series
of Securities plus any unused balance of any preceding sinking fund payments made in funds with respect to such series shall exceed $50,000
(or a lesser sum if the Company shall so request, or such equivalent sum for Securities denominated other than in U.S. Dollars), it shall
be applied by the Trustee on the sinking fund payment date next following the date of such payment, unless the date of such payment shall
be a sinking fund payment date, in which case such payment shall be applied on such sinking fund payment date, to the redemption of Securities
of such series at the redemption price specified pursuant to Section 4.03(b). The Trustee shall select, in the manner provided in Section
4.02, for redemption on such sinking fund payment date, a sufficient principal amount of Securities of such series to absorb said funds,
as nearly as may be, and shall, at the expense and in the name of the Company, thereupon cause notice of redemption of the Securities
to be given in substantially the manner provided in Section 4.03(a) for the redemption of Securities in part at the option of the Company,
except that the notice of redemption shall also state that the Securities are being redeemed for the sinking fund. Any sinking fund moneys
not so applied by the Trustee to the redemption of Securities of such series shall be added to the next sinking fund payment received
in funds by the Trustee and, together with such payment, shall be applied in accordance with the provisions of this Section 5.04. Any
and all sinking fund moneys held by the Trustee on the last sinking fund payment date with respect to Securities of such series, and not
held for the payment or redemption of particular Securities of such series, shall be applied by the Trustee to the payment of the principal
of the Securities of such series at Maturity.
(b)
On or prior to each sinking fund payment date, the Company shall pay to the Trustee a sum equal to all interest accrued to but
not including the date fixed for redemption on Securities to be redeemed on such sinking fund payment date pursuant to this Section 5.04.
(c)
The Trustee shall not redeem any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a Default in payment of interest on any Securities of such
series or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) of which a Responsible
Officer of the Trustee has actual knowledge, except that if the notice of redemption of any Securities of such series shall theretofore
have been mailed in accordance with the provisions hereof, the Trustee shall redeem such Securities if funds sufficient for that purpose
shall be deposited with the Trustee in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund
at the time any such Default or Event of Default shall occur and any moneys thereafter paid into the sinking fund shall, during the continuance
of such Default or Event of Default, be held as security for the payment of all the Securities of such series; provided, however,
that in case such Default or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied
on the next sinking fund payment date on which such moneys are required to be applied pursuant to the provisions of this Section 5.04.
Article
VI
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
Section 6.01
Payments of Securities. The Company will duly and punctually pay the principal of and premium, if any, on each series of
Securities, and the interest which shall have accrued thereon, at the dates and place and in the manner provided in the Securities and
in this Indenture.
Section 6.02
Paying Agent.
(a)
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities may be presented
or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this Indenture may be served (the “Paying Agent”). The
Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at
any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company
hereby appoints the Trustee as Paying Agent to receive all presentations, surrenders, notices and demands.
(b)
The Company may also from time to time designate different or additional offices or agencies where the Securities of any series
may be presented or surrendered for any or all such purposes (in or outside of such Place of Payment), and may from time to time rescind
any such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company
of its obligations described in the preceding paragraph. The Company will give prompt written notice to the Trustee of any such additional
designation or rescission of designation and of any change in the location of any such different or additional office or agency. The Company
shall enter into an appropriate agency agreement with any Paying Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify the Trustee of the name and address of each such agent.
The Company or any Affiliate thereof may act as Paying Agent, except that neither the Company nor any Affiliate thereof may act as Paying
Agent with respect to any series of Securities as to which the Company has effected satisfaction and discharge pursuant to Section 12.02
or Discharge (as defined in Section 12.03) from its obligations with respect to the Securities of such series pursuant to Section 12.03.
Section 6.03
To Hold Payment in Trust.
(a)
If the Company or an Affiliate thereof shall at any time act as Paying Agent with respect to any series of Securities, then, on
or before the date on which the principal of and premium, if any, or interest on any of the Securities of that series by their terms
or as a result of the calling thereof for redemption shall become payable, the Company or such Affiliate will segregate and hold in trust
for the benefit of the Holders of such Securities or the Trustee a sum sufficient to pay such principal and premium, if any, or interest
which shall have so become payable until such sums shall be paid to such Holders or otherwise disposed of as herein provided, and will
notify the Trustee of its action or failure to act in that regard. Upon any proceeding under any federal bankruptcy laws with respect
to the Company or any Affiliate thereof, if the Company or such Affiliate is then acting as Paying Agent, the Trustee shall replace the
Company or such Affiliate as Paying Agent.
(b)
If the Company shall appoint, and at the time have, a Paying Agent for the payment of the principal of and premium, if any, or
interest on any series of Securities, then prior to 11:00 a.m., New York City time, on the date on which the principal of and premium,
if any, or interest on any of the Securities of that series shall become payable as aforesaid, whether by their terms or as a result of
the calling thereof for redemption, the Company will deposit with such Paying Agent a sum sufficient to pay such principal and premium,
if any, or interest, such sum to be held in trust for the benefit of the Holders of such Securities or the Trustee, and (unless such Paying
Agent is the Trustee), the Company or any other obligor of such Securities will promptly notify the Trustee of its payment or failure
to make such payment.
(c)
If the Paying Agent shall be other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 6.03, that such Paying
Agent shall:
(i)
hold all moneys held by it for the payment of the principal of and premium, if any, or interest on the Securities of that series
in trust for the benefit of the Holders of such Securities until such sums shall be paid to such Holders or otherwise disposed of as herein
provided;
(ii)
give to the Trustee notice of any Default by the Company or any other obligor upon the Securities of that series in the making
of any payment of the principal of and premium, if any, or interest on the Securities of that series; and
(iii)
at any time during the continuance of any such Default, upon the written request of the Trustee, pay to the Trustee all sums so
held in trust by such Paying Agent.
(d)
Anything in this Section 6.03 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a release,
satisfaction or discharge of this Indenture or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by
the Company or by any Paying Agent other than the Trustee as required by this Section 6.03, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such Paying Agent.
(e)
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal
of and premium, if any, or interest on any Security of any series and remaining unclaimed for two years after such principal and premium,
if any, or interest has become due and payable shall be paid to the Company upon Company Order along with any interest that has accumulated
thereon as a result of such money being invested at the direction of the Company, or (if then held by the Company) shall be discharged
from such trust, and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment
of such amounts without interest thereon, and all liability of the Trustee or such Paying Agent with respect to such trust money, and
all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying
Agent before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of general circulation in The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Company.
Section 6.04
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect to any series
of Securities:
(a)
The Company will not consolidate with any other entity or permit a merger of any other entity into the Company or permit the Company
to be merged into any other entity, or sell, convey, transfer or lease all or substantially all its assets to another entity, unless (i)
either the Company shall be the continuing entity, or the successor, transferee or lessee entity (if other than the Company) shall be
organized and existing under the laws of the United States or any State thereof and shall expressly assume, by indenture supplemental
hereto, executed and delivered by such entity prior to or simultaneously with such consolidation, merger, sale, conveyance, transfer or
lease, the due and punctual payment of the principal of and interest and premium, if any, on all the Securities, according to their tenor,
and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under this Indenture or under
the Securities to be performed or observed by the Company; and (ii) immediately after such consolidation, merger, sale, conveyance, transfer
or lease, the Company or the successor, transferee or lessee entity (if other than the Company) would not be in Default in the performance
of any covenant or condition of this Indenture and no Event of Default would have occurred and be continuing.
(b)
Upon any consolidation with or merger into any other entity, or any sale, conveyance, transfer or lease of all or substantially
all of the assets of the Company in accordance with this Section 6.04, the successor entity formed by such consolidation or into or with
which the Company is merged or to which the Company is sold or to which such conveyance, transfer or lease is made shall succeed to, and
be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor
entity had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Company shall be relieved
of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every
right and power of the Company under this Indenture, in the name of the Company, or in its own name; and any act or proceeding by any
provision of this Indenture required or permitted to be done by the Board of Directors or any officer of the Company may be done with
like force and effect by the like board or officer of any entity that shall at the time be the successor of the Company hereunder. In
the event of any such sale or conveyance, but not any such lease, the Company (or any successor entity which shall theretofore have become
such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture and the
Securities and may thereupon be dissolved and liquidated.
Section 6.05
Compliance Certificate. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities,
the Company shall furnish to the Trustee annually, within 120 days after the end of each fiscal year, a brief certificate from the principal
executive officer, principal financial officer, principal accounting officer, executive vice president, senior vice president or vice
president and treasurer as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture
(which compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture) and,
in the event of any Default, specifying each such Default and the nature and status thereof of which such person may have knowledge. Such
certificates need not comply with Section 16.01 of this Indenture.
Section 6.06
Conditional Waiver by Holders of Securities. Anything in this Indenture to the contrary notwithstanding, the Company may
fail or omit in any particular instance to comply with a covenant or condition set forth herein with respect to any series of Securities
(other than the obligation to pay the principal of, premium, if any, and interest on any Security of such series, or in the case of any
Securities which are convertible into or exchangeable for securities or property, the obligation to convert or exchange such Securities,
or a covenant or provision hereof which under Section 14.02 cannot be modified or amended without the consent of the Holder of each Outstanding
Security of such series affected) if the Company shall have obtained and filed with the Trustee, prior to the time of such failure or
omission, evidence (as provided in Article VIII) of the consent of the Holders of a majority in aggregate principal amount of the Securities
of such series at the time Outstanding, either waiving such compliance in such instance or generally waiving compliance with such covenant
or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, or impair
any right consequent thereon and, until such waiver shall have become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force and effect.
Section 6.07
Statement by Officers as to Default. The Company shall deliver to the Trustee as soon as possible and in any event within
30 days after the Company becomes aware of the occurrence of any Event of Default or an event which, with the giving of notice or the
lapse of time or both, would constitute an Event of Default, an Officer’s Certificate setting forth the details of such Event of
Default or Default and the action which the Company proposes to take with respect thereto.
Section 6.08
Maintenance of Insurance. The Company will maintain, or cause to be maintained, insurance with responsible companies on
all properties of the Company and its Subsidiaries and against all tort claims that may be incurred by the Company and its Subsidiaries,
all to the extent and in such amounts and against such risks as are usually covered by insurance policies carried by owners of similar
enterprises.
Article
VII
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
Section 7.01
Events of Default. Except where otherwise indicated by the context or where the term is otherwise defined for a specific
purpose, the term “Event of Default” as used in this Indenture with respect to Securities of any series shall mean any of
the following described events unless it is specifically deleted or modified, insofar as concerns the Securities of such series, in the
manner contemplated in Section 3.01:
(a)
the failure of the Company to pay any installment of interest on any Security of such series when and as the same shall become
payable, which failure shall have continued unremedied for a period of 30 days;
(b)
the failure of the Company to pay any principal of (or premium, if any, on) any Security of such series, when and as the same shall
become payable, whether at Maturity as therein expressed, by call for redemption (otherwise than pursuant to a sinking fund), upon acceleration
or otherwise;
(c)
the failure of the Company to pay a sinking fund installment, if any, when and as the same shall become payable by the terms of
a Security of such series;
(d)
the failure of the Company, subject to the provisions of Section 6.06, to perform any covenants or agreements contained in this
Indenture (including any indenture supplemental hereto or Officer’s Certificate pursuant to which the Securities of such series
were issued as contemplated by Section 3.01) (other than a covenant or agreement which has been expressly included in this Indenture
solely for the benefit of a series of Securities other than that series and other than a covenant or agreement a default in the performance
of which is elsewhere in this Section 7.01 specifically addressed), or in any Securities of such series, which failure shall not have
been remedied for a period of 60 days after written notice shall have been given to the Company by the Trustee or shall have been given
to the Company and the Trustee by Holders of 25% or more in aggregate principal amount of the Securities of such series then Outstanding,
specifying such failure, requiring the Company to remedy the same and stating that such notice is a “Notice of Default” hereunder;
(e)
the entry by a court having jurisdiction in the premises of a decree or order for relief in respect of the Company in an involuntary
case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of the Company or of substantially all the property of the Company or ordering the winding-up or liquidation of its
affairs and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(f)
the commencement by the Company of a voluntary case under the federal bankruptcy laws, as now or hereafter constituted, or any
other applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by the Company
to the entry of an order for relief in an involuntary case under any such law, or the consent by the Company to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or similar official) of the Company or of substantially
all the property of the Company or the making by it of an assignment for the benefit of creditors or the admission by it in writing of
its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any action;
or
(g)
the occurrence of any other Event of Default with respect to Securities of such series as provided in Section 3.01.
Notwithstanding the foregoing provisions of this
Section 7.01, if the principal or any premium or interest on any Security is payable in a Currency other than the Currency of the United
States and such Currency is not available to the Company for making payment thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company, the Company will be entitled to satisfy its obligations to Holders of the Securities
by making such payment in the Currency of the United States in an amount equal to the Currency of the United States equivalent of the
amount payable in such other Currency, as determined by the Company’s agent in accordance with Section 3.11(c) hereof by reference
to the noon buying rate in The City of New York for cable transfers for such Currency (“Exchange Rate”), as such Exchange
Rate is reported or otherwise made available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is
not then available, on the basis of the most recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section
7.01, any payment made under such circumstances in the Currency of the United States where the required payment is in a Currency other
than the Currency of the United States will not constitute an Event of Default under this Indenture.
Section 7.02
Acceleration; Rescission and Annulment.
(a)
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, if any one or more of the
above-described Events of Default (other than an Event of Default specified in Section 7.01(e) or 7.01(f)) shall happen with respect
to Securities of any series at the time Outstanding, then, and in each and every such case, during the continuance of any such Event
of Default, the Trustee or the Holders of 25% or more in principal amount of the Securities of such series then Outstanding may declare
the principal (or, if the Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) of and all accrued but unpaid interest on all the Securities of such series then Outstanding
to be due and payable immediately by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such acceleration
such principal amount (or specified amount) and interest shall become immediately due and payable. If an Event of Default specified in
Section 7.01(e) or 7.01(f) occurs and is continuing, then in every such case, the principal of (or, if the Securities of that series
are Original Issue Discount Securities, such portion of the principal amount as may be specified by the terms of that series) of and
all accrued but unpaid interest on all of the Securities of that series then Outstanding shall automatically, and without any acceleration
or any other action on the part of the Trustee or any Holder, become due and payable immediately. Upon payment of such amounts in the
Currency in which such Securities are denominated (subject to the last paragraph of Section 7.01 and except as otherwise provided pursuant
to Section 3.01), all obligations of the Company in respect of the payment of principal of and interest on the Securities of such series
shall terminate.
(b)
The provisions of Section 7.02(a), however, are subject to the condition that, at any time after the principal of all the Securities
of such series, to which any one or more of the above-described Events of Default is applicable, shall have been so declared to be or
shall have automatically become due and payable, and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article, Holders of a majority in principal amount of the Securities of that Series then Outstanding,
by written notice to the Company and the Trustee, may rescind and annual such acceleration if:
(i)
the Company has paid or deposited with the Trustee or Paying Agent a sum in the Currency in which such Securities are denominated
(subject to the last paragraph of Section 7.01 and except as otherwise provided pursuant to Section 3.01) sufficient to pay:
(A)
all amounts owing the Trustee and any predecessor trustee hereunder under Section 11.01(a) (provided, however, that
all sums payable under this clause (A) shall be paid in U.S. Dollars);
(B)
all arrears of interest, if any, upon all the Securities of such series (with interest, to the extent that interest thereon shall
be legally enforceable, on any overdue installment of interest at the rate or rates prescribed therefor in such Securities or, if no such
rate is prescribed therefor in such Securities, at the rate of interest otherwise borne by such Securities); and
(C)
the principal of and premium, if any, on any Securities of such series that have become due otherwise than by such acceleration
and interest on such principal and (to the extent that interest thereon shall be legally enforceable) interest on the overdue premium,
if any, at the rate prescribed therefor in such Securities or, if no rate is prescribed therefor in such Securities, at the rate of interest
otherwise borne by such Securities; and
(ii)
every other Default and Event of Default with respect to Securities of that series, other than the non-payment of the principal
of Securities of that series which have become due solely by such acceleration, have been cured or waived as provided in Section 7.06.
(c)
No such rescission shall affect any subsequent default or impair any right consequent thereon.
(d)
For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such acceleration, unless such acceleration
has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder,
to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion
of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section 7.03
Other Remedies. If the Company shall fail for a period of 30 days to pay any installment of interest on the Securities of
any series or shall fail to pay any principal of or premium, if any, on any of the Securities of such series when and as the same shall
become due and payable, whether at Maturity, or by call for redemption (other than pursuant to the sinking fund), by acceleration as authorized
by this Indenture, or otherwise, or shall fail to make any required sinking fund payment as to a series of Securities, then, upon demand
of the Trustee, the Company will pay to the Paying Agent for the benefit of the Holders of Securities of such series then Outstanding
the whole amount which then shall have become due and payable on all the Securities of such series for principal, premium, if any, and
interest, with interest on the overdue principal and (so far as the same may be legally enforceable) on the overdue premium, if any, and
overdue installments of interest at the rate prescribed therefor in such Securities or, if no rate is prescribed therefor in such Securities,
at the rate of interest otherwise borne by such Securities, and all amounts owing the Trustee and any predecessor trustee hereunder under
Section 11.01(a).
If an Event of Default with respect to the Securities
of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of
the Holders of the Securities of such series by such appropriate judicial proceedings as the Trustee shall deem appropriate to protect
and enforce any such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
In case the Company shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute
any action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding
to judgment or final decree, and may enforce any such judgment or final decree against the Company or any other obligor upon the Securities
of such series, and collect the moneys adjudged or decreed to be payable out of the property of the Company or any other obligor upon
the Securities of such series, wherever situated, in the manner provided by law. Every recovery of judgment in any such action or other
proceeding, subject to the payment to the Trustee of all amounts owing the Trustee and any predecessor trustee hereunder under Section
11.01(a), shall be for the ratable benefit of the Holders of such series of Securities which shall be the subject of such action or proceeding.
All rights of action upon or under any of the Securities or this Indenture may be enforced by the Trustee without the possession of any
of the Securities and without the production of any thereof at any trial or any proceeding relative thereto.
Section 7.04
Trustee as Attorney-in-Fact. The Trustee is hereby appointed, and each and every Holder of the Securities, by receiving
and holding the same, shall be conclusively deemed to have appointed the Trustee, the true and lawful attorney-in-fact of such Holder,
with authority to make or file (whether or not the Company shall be in Default in respect of the payment of the principal of, or premium,
if any, or interest on, any of the Securities), in its own name and as trustee of an express trust or otherwise as it shall deem advisable,
in any receivership, insolvency, liquidation, bankruptcy, reorganization or other judicial proceeding relative to the Company or any
other obligor upon the Securities or to their respective creditors or property, any and all claims, proofs of claim, proofs of debt,
petitions, consents, other papers and documents and amendments of any thereof, as may be necessary or advisable in order to have the
claims of the Trustee and any predecessor trustee hereunder and of the Holders of the Securities allowed in any such proceeding and to
collect and receive any moneys or other property payable or deliverable on any such claim, and to execute and deliver any and all other
papers and documents and to do and perform any and all other acts and things, as it may deem necessary or advisable in order to enforce
in any such proceeding any of the claims of the Trustee and any predecessor trustee hereunder and of any of such Holders in respect of
any of the Securities; and any receiver, assignee, trustee, custodian or debtor in any such proceeding is hereby authorized, and each
and every taker or Holder of the Securities, by receiving and holding the same, shall be conclusively deemed to have authorized any such
receiver, assignee, trustee, custodian or debtor, to make any such payment or delivery only to or on the order of the Trustee, and to
pay to the Trustee any amount due it and any predecessor trustee hereunder under Section 11.01(a); provided, however, that
nothing herein contained shall be deemed to authorize or empower the Trustee to consent to or accept or adopt, on behalf of any Holder
of Securities, any plan of reorganization or readjustment affecting the Securities or the rights of any Holder thereof, or to authorize
or empower the Trustee to vote in respect of the claim of any Holder of any Securities in any such proceeding.
Section 7.05
Priorities. Any moneys or properties collected by the Trustee with respect to a series of Securities under this Article
VII shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys or properties
and, in the case of the distribution of such moneys or properties on account of the Securities of any series, upon presentation of the
Securities of such series, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
First: To the payment of all amounts
due to the Trustee and any predecessor trustee hereunder under Section 11.01(a).
Second: Subject to Article XV (to the
extent applicable to any series of Securities then outstanding), to the payment of the amounts then due and unpaid for principal of and
any premium and interest on the Outstanding Securities of such series in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Outstanding Securities
for principal and any premium and interest, respectively.
Any surplus then remaining shall be paid to the Company or as directed
by a court of competent jurisdiction.
Section 7.06
Control by Securityholders; Waiver of Past Defaults. The Holders of a majority in principal amount of the Securities of
any series at the time Outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee hereunder, or of exercising any trust or power hereby conferred upon the Trustee with respect to the Securities of such series,
provided, however, that, subject to the provisions of Sections 11.01 and 11.02, the Trustee shall have the right to decline
to follow any such direction if the Trustee being advised by counsel determines that the action so directed may not lawfully be taken
or would be unduly prejudicial to Holders not joining in such direction or would involve the Trustee in personal liability. Prior to
any acceleration of the Maturity of the Securities of any series, the Holders of a majority in aggregate principal amount of such series
of Securities at the time Outstanding may on behalf of the Holders of all of the Securities of such series waive any past Default or
Event of Default hereunder and its consequences except a Default in the payment of interest or any premium on or principal of the Securities
of such series or in the case of any Securities which are convertible into or exchangeable for other securities or property, a Default
in any such conversion or exchange, or a Default in respect of a covenant or provision hereof which under Section 14.02 cannot be modified
or amended without the consent of the Holder of each Outstanding Security of such series affected. Upon any such waiver the Company,
the Trustee and the Holders of the Securities of such series shall be restored to their former positions and rights hereunder, respectively;
but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent thereon. Whenever
any Default or Event of Default hereunder shall have been waived as permitted by this Section 7.06, said Default or Event of Default
shall for all purposes of the Securities of such series and this Indenture be deemed to have been cured and to be not continuing.
Section 7.07
Limitation on Suits. No Holder of any Security of any series shall have any right to institute any action, suit or proceeding
at law or in equity for the execution of any trust hereunder or for the appointment of a receiver or for any other remedy hereunder, in
each case with respect to an Event of Default with respect to such series of Securities, unless such Holder previously shall have given
to the Trustee written notice of one or more of the Events of Default herein specified with respect to such series of Securities, and
unless also the Holders of 25% or more in principal amount of the Securities of such series then Outstanding shall have requested the
Trustee in writing to take action in respect of the matter complained of, and unless also there shall have been offered to the Trustee
security and indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby, and
the Trustee, for 60 days after receipt of such notification, request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding; and such notification, request and offer of indemnity are hereby declared in every such case to be
conditions precedent to any such action, suit or proceeding by any Holder of any Security of such series; it being understood and intended
that no one or more of the Holders of Securities of such series shall have any right in any manner whatsoever by his, her, its or their
action to enforce any right hereunder, except in the manner herein provided, and that every action, suit or proceeding at law or in equity
shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Holders of the Outstanding Securities
of such series and shall not affect, disturb or prejudice the rights of any other Holder (the Trustees shall have no affirmative duty
to ascertain whether or not such actions or forbearances are unduly prejudiced to such Holders); provided, however, that
nothing in this Indenture or in the Securities of such series shall affect or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of, premium, if any, and interest on the Securities of such series to the respective Holders of
such Securities at the respective due dates in such Securities stated, or affect or impair the right, which is also absolute and unconditional,
of such Holders to institute suit to enforce the payment thereof.
Section 7.08
Undertaking for Costs. All parties to this Indenture and each Holder of any Security, by such Holder’s acceptance
thereof, shall be deemed to have agreed that any court may in its discretion require, in any action, suit or proceeding for the enforcement
of any right or remedy under this Indenture, or in any action, suit or proceeding against the Trustee for any action taken or omitted
by it as Trustee, the filing by any party litigant in such action, suit or proceeding of an undertaking to pay the costs of such action,
suit or proceeding, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such action, suit or proceeding, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; provided, however, that the provisions of this Section 7.08 shall not apply to
any action, suit or proceeding instituted by the Trustee, to any action, suit or proceeding instituted by any one or more Holders of Securities
holding in the aggregate more than 10% in principal amount of the Securities of any series Outstanding, or to any action, suit or proceeding
instituted by any Holder of Securities of any series for the enforcement of the payment of the principal of or premium, if any, or the
interest on, any of the Securities of such series, on or after the respective due dates expressed in such Securities.
Section 7.09
Remedies Cumulative. No remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities of any
series is intended to be exclusive of any other remedy or remedies, and each and every remedy shall be cumulative and shall be in addition
to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission of the Trustee
or of any Holder of the Securities of any series to exercise any right or power accruing upon any Default or Event of Default shall impair
any such right or power or shall be construed to be a waiver of any such Default or Event of Default or an acquiescence therein; and
every power and remedy given by this Article VII to the Trustee and to the Holders of Securities of any series, respectively, may be
exercised from time to time and as often as may be deemed expedient by the Trustee or by the Holders of Securities of such series, as
the case may be. In case the Trustee or any Holder of Securities of any series shall have proceeded to enforce any right under this Indenture
and the proceedings for the enforcement thereof shall have been discontinued or abandoned because of waiver or for any other reason or
shall have been adjudicated adversely to the Trustee or to such Holder of Securities, then and in every such case the Company, the Trustee
and the Holders of the Securities of such series shall severally and respectively be restored to their former positions and rights hereunder,
and thereafter all rights, remedies and powers of the Trustee and the Holders of the Securities of such series shall continue as though
no such proceedings had been taken, except as to any matters so waived or adjudicated.
Article
VIII
CONCERNING THE SECURITYHOLDERS
Section 8.01
Evidence of Action of Securityholders. Whenever in this Indenture it is provided that the Holders of a specified
percentage or a majority in aggregate principal amount of the Securities or of any series of Securities may take any action (including
the making of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at
the time of taking any such action the Holders of such specified percentage or majority have joined therein may be evidenced by (a) any
instrument or any number of instruments of similar tenor executed by Securityholders in person, by an agent or by a proxy appointed in
writing, including through an electronic system for tabulating consents operated by the Depositary for such series or otherwise (such
action becoming effective, except as herein otherwise expressly provided, when such instruments or evidence of electronic consents are
delivered to the Trustee and, where it is hereby expressly required, to the Company), or (b) by the record of the Holders of Securities
voting in favor thereof at any meeting of Securityholders duly called and held in accordance with the provisions of Article IX, or (c)
by a combination of such instrument or instruments and any such record of such a meeting of Securityholders.
Section 8.02
Proof of Execution or Holding of Securities. Proof of the execution of any instrument by a Securityholder or his, her or
its agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a)
The fact and date of the execution by any Person of any such instrument may be proved (i) by the certificate of any notary public
or other officer in any jurisdiction who, by the laws thereof, has power to take acknowledgments or proof of deeds to be recorded within
such jurisdiction, that the Person who signed such instrument did acknowledge before such notary public or other officer the execution
thereof, or (ii) by the affidavit of a witness of such execution sworn to before any such notary or other officer. Where such execution
is by a Person acting in other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority.
(b)
The ownership of Securities of any series shall be proved by the Register of such Securities or by a certificate of the Registrar
for such series.
(c)
The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.
(d)
The Trustee may require such additional proof of any matter referred to in this Section 8.02 as it shall deem appropriate or necessary,
so long as the request is a reasonable one.
(e)
If the Company shall solicit from the Holders of Securities of any series any action, the Company may, at its option fix in advance
a record date for the determination of Holders of Securities entitled to take such action, but the Company shall have no obligation to
do so. Any such record date shall be fixed at the Company’s discretion. If such a record date is fixed, such action may be sought
or given before or after the record date, but only the Holders of Securities of record at the close of business on such record date shall
be deemed to be Holders of Securities for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities
of such series have authorized or agreed or consented to such action, and for that purpose the Outstanding Securities of such series shall
be computed as of such record date.
Section 8.03
Persons Deemed Owners.
(a)
The Company, the Trustee or any of their agents may treat the Person in whose name any Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and premium, if any, and (subject to Section 3.08) interest, if any, on,
such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Company, the Trustee nor
any of their agents shall be affected by notice to the contrary. All payments made to any Holder, or upon his, her or its order, shall
be valid, and, to the extent of the sum or sums paid, effectual to satisfy and discharge the liability for moneys payable upon such Security.
(b)
None of the Company, the Trustee, or any of their agents will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 8.04
Effect of Consents. After an amendment, supplement, waiver or other action becomes effective as to any series of Securities,
a consent to it by a Holder of such series of Securities is a continuing consent conclusive and binding upon such Holder and every subsequent
Holder of the same Securities or portion thereof, and of any Security issued upon the transfer thereof or in exchange therefor or in place
thereof, even if notation of the consent is not made on any such Security.
Article
IX
SECURITYHOLDERS’ MEETINGS
Section 9.01
Purposes of Meetings. A meeting of Securityholders of any or all series may be called at any time and from time to time
pursuant to the provisions of this Article IX for any of the following purposes:
(a)
to give any notice to the Company or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of
any Default or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders
pursuant to any of the provisions of Article VIII;
(b)
to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article XI;
(c)
to consent to the execution of an Indenture or of indentures supplemental hereto pursuant to the provisions of Section 14.02; or
(d)
to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of
the Securities of any one or more or all series, as the case may be, under any other provision of this Indenture or under applicable law.
Section 9.02
Call of Meetings by Trustee. The Trustee may at any time call a meeting of all Securityholders of any or all series that
may be affected by the action proposed to be taken, to take any action specified in Section 9.01, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of the Securityholders of a series, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed at the expense of the Company to
Holders of Securities of such series at their addresses as they shall appear on the Register of the Company. Such notice shall be mailed
not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Section 9.03
Call of Meetings by Company or Securityholders. In case at any time the Company or the Holders of at least 10% in aggregate
principal amount of the Securities of any series then Outstanding that may be affected by the action proposed to be taken, shall have
requested the Trustee to call a meeting of Securityholders of such series, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of
such request, then the Company or such Securityholders may determine the time and the place for such meeting and may call such meeting
to take any action authorized in Section 9.01, by mailing notice thereof as provided in Section 9.02.
Section 9.04
Qualifications for Voting. To be entitled to vote at any meeting of Securityholders, a Person shall (a) be a Holder of one
or more Securities affected by the action proposed to be taken at the meeting or (b) be a Person appointed by an instrument in writing
as proxy by a Holder of one or more such Securities. The only Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel. Anything in this Indenture to the contrary notwithstanding, unless otherwise
expressly provided pursuant to Section 3.01 with respect to the Securities of any series, any vote, consent, waiver or other action given
or taken by the Holders of any series of Securities at a meeting shall be given or taken, as the case may be, by the Holders of such series
of Securities as a separate class.
Section 9.05
Regulation of Meetings.
(a)
Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable
for any meeting of Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to
the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right
to vote, and such other matters concerning the conduct of the meeting as it shall deem fit.
(b)
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been
called by the Company or by Securityholders as provided in Section 9.03, in which case the Company or the Securityholders calling the
meeting, as the case may be, shall in like manner appoint a temporary chair. A permanent chairman and a permanent secretary of the meeting
shall be elected by majority vote of the meeting.
(c)
At any meeting of Securityholders of a series, each Securityholder of such series or such Securityholder’s proxy shall be
entitled to one vote for each $1,000 principal amount of Securities of such series Outstanding held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. If the Securities of any series are issuable in minimum denominations of less than
$1,000, then a Holder of such a Security in a principal amount of less than $1,000 shall be entitled to a fraction of one vote which
is equal to the fraction that the principal amount of such Security bears to $1,000. The chairman of the meeting shall have no right
to vote other than by virtue of Securities of such series held by him or her or instruments in writing as aforesaid duly designating
him or her as the Person to vote on behalf of other Securityholders. At any meeting of the Securityholders of any series duly called
pursuant to the provisions of Section 9.02 or 9.03, the presence of Persons holding or representing Securities of such series in an aggregate
principal amount sufficient to take action, insofar as concerns the Securities of such series, upon the business for the transaction
of which such meeting was called shall be necessary to constitute a quorum for a meeting of Holders of the Securities of such series,
and any such meeting may be adjourned from time to time by a majority of those present, whether or not constituting a quorum, and the
meeting may be held as so adjourned without further notice.
Section 9.06
Voting. The vote upon any resolution submitted to any meeting of Securityholders of a series shall be by written ballots
on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal
amounts of the Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors
of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.02. The record shall
show the principal amounts of the Securities voting in favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Company and
the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
Section 9.07
No Delay of Rights by Meeting. Nothing contained in this Article IX shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Securityholders of any series or any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Securityholders
of such series under any of the provisions of this Indenture or of the Securities of such series.
Article
X
REPORTS BY THE COMPANY AND THE TRUSTEE AND
SECURITYHOLDERS’ LISTS
Section 10.01
Reports by Trustee.
(a)
So long as any Securities are outstanding, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided therein. If required
by Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each anniversary following the date of this Indenture
deliver to Holders a brief report which complies with the provisions of such Section 313(a).
(b)
The Trustee shall, at the time of the transmission to the Holders of Securities of any report pursuant to the provisions of this
Section 10.01, file a copy of such report with each stock exchange upon which the Securities are listed, if any, and also with the SEC
in respect of a Security listed and registered on a national securities exchange, if any. The Company agrees to notify the Trustee when,
as and if the Securities become listed on any stock exchange or any delisting thereof.
(c)
The Company will reimburse the Trustee for all expenses incurred in the preparation and transmission of any report pursuant to
the provisions of this Section 10.01 and of Section 10.02.
Section 10.02
Reports by the Company.
The Company shall:
(a)
file with or deliver to the Trustee, within 15 days after the Company is required to file the same with the SEC, copies of the
annual and quarterly reports and the information, documents and other reports (or copies of such portions of any of the foregoing as the
SEC may from time to time by rules and regulations prescribe) that the Company may be required to file with the SEC pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports with the SEC pursuant
to either Section 13 or Section 15(d) of the Exchange Act, then the Company will file with or deliver to the Trustee and the SEC, in accordance
with any other rules and regulations that may be prescribed from time to time by the SEC, such annual and quarterly reports and supplementary
and periodic information, documents and reports that may be required pursuant to Section 13 of the Exchange Act, in respect of a security
listed and registered on a national securities exchange, as may be prescribed from time to time by the SEC in such rules and regulations;
or
(b)
if at any time the Company is not subject to Section 13 or 15(d) of the Exchange Act and the Company is not providing annual and
quarterly reports and supplementary and periodic information, documents and reports to the SEC and the Trustee pursuant to Section 10.02(a)
of this Indenture, the Company will, at its option, either (i) post on a publicly available website or (ii) post on IntraLinks or any
comparable password protected online data system requiring user identification and a confidentiality acknowledgement (a “Confidential
Datasite”), within 15 days of the filing date that would be applicable to a non-accelerated filer at that time pursuant to applicable
SEC rules and regulations, the quarterly and audited annual financial statements and accompanying disclosure described in Item 303 of
Regulation S-K (“management’s discussion and analysis of financial condition and results of operations”) that would
be required to be contained in annual reports on Form 10-K and quarterly reports on Form 10-Q, respectively, required to be filed with
the SEC if the Company were subject to Section 13(a) or 15(d) of the Exchange Act. If the Company elects to furnish such reports via a
Confidential Datasite, access to the Confidential Datasite will be provided promptly upon request to Holders and beneficial owners of,
and bona fide potential investors in, the Securities as well as securities analysts and market makers and no such request for access to
the Confidential Datasite will be unreasonably denied.
Any such report, information or document that the
Company files with or furnishes to the SEC through the EDGAR shall be deemed filed with the Trustee for purposes of Section 10.02(a) and
(b) this Indenture at the time of such filing or furnishing through EDGAR. Delivery of such reports, information and documents to the
Trustee is for informational purposes only, and the Trustee’s receipt of such will not constitute actual or constructive notice
or knowledge of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).
Section 10.03
Securityholders’ Lists. The Company covenants and agrees that it will furnish or cause to be furnished to the Trustee:
(a)
semi-annually, within 15 days after each Record Date, but in any event not less frequently than semi-annually, a list in such
form as the Trustee may reasonably require of the names and addresses of the Holders of Securities to which such Record Date applies,
as of such Record Date, and
(b)
at such other times as the Trustee may request in writing, within 30 days after receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee shall
be the Registrar, such lists shall not be required to be furnished.
Article
XI
CONCERNING THE TRUSTEE
Section 11.01
Rights of Trustees; Compensation and Indemnity. The Trustee accepts the trusts created by this Indenture upon the terms
and conditions hereof, including the following, all of which the parties hereto and the Holders from time to time of the Securities agree:
(a)
The Trustee shall be entitled to such compensation from the Company as the Company and the Trustee shall from time to time agree
in writing for all services rendered by it hereunder (including in any agent capacity in which it acts). The compensation of the Trustee
shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust. The Company shall reimburse
the Trustee promptly upon its request for all out-of-pocket expenses, disbursements and advances incurred or made by the Trustee (including
the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as shall be determined
to have been caused by its own negligence or willful misconduct.
The Company also agrees to indemnify each of the
Trustee and any predecessor Trustee hereunder for, and to hold it harmless against, any and all loss, liability, damage, claim, or expense
incurred without its own negligence, bad faith or willful misconduct, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder and the performance of its duties (including in any agent capacity in which it acts), as well as the
costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers
or duties hereunder, except those determined to have been caused by its own negligence or willful misconduct. The Trustee shall notify
the Company promptly of any claim of which a Responsible Officer has received written notice for which it may seek indemnity. The Company
shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel of its selection and
the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
As security for the performance of the obligations
of the Company under this Section 11.01(a), the Trustee shall have a lien upon all property and funds held or collected by the Trustee
as such, except funds held in trust by the Trustee to pay principal of and premium, if any, and interest on any Securities. Notwithstanding
any provisions of this Indenture to the contrary, the obligations of the Company to compensate and indemnify the Trustee under this Section
11.01(a) shall survive the resignation or removal of the Trustee, the termination of this Indenture and any satisfaction and discharge
under Article XII. When the Trustee incurs expenses or renders services after an Event of Default specified in clause (e) or (f) of Section
7.01 occurs, the expenses and compensation for the services are intended to constitute expenses of administration under any applicable
federal or state bankruptcy, insolvency or similar laws.
(b)
The Trustee may execute any of the trusts or powers hereof and perform any duty hereunder either directly or by its agents and
attorneys and shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(c)
The Trustee shall not be responsible in any manner whatsoever for the correctness of the recitals herein or in the Securities (except
its certificates of authentication thereon) contained, all of which are made solely by the Company; and the Trustee shall not be responsible
or accountable in any manner whatsoever for or with respect to the validity or execution or sufficiency of this Indenture or of the Securities
(except its certificates of authentication thereon), and the Trustee makes no representation with respect thereto, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder
and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to
the qualifications set forth therein. The Trustee shall not be accountable for the use or application by the Company of any Securities,
or the proceeds of any Securities, authenticated and delivered by the Trustee in conformity with the provisions of this Indenture.
(d)
The Trustee may consult with counsel of its selection, and any advice of counsel shall be full and complete authorization and protection
in respect of any action taken or suffered by the Trustee hereunder in good faith and in accordance with such advice of counsel.
(e)
The Trustee may rely upon the certificate of the Secretary or one of the Assistant Secretaries of the Company as to the adoption
of any Board Resolution or resolution of the stockholders of the Company, and any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by, and whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee may rely upon, an Officer’s
Certificate of the Company (unless other evidence in respect thereof be herein specifically prescribed).
(f)
The Trustee or any agent of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities
and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company with the same rights it would
have had if it were not the Trustee or such agent.
(g)
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the
Company.
(h)
Any action taken by the Trustee pursuant to any provision hereof at the request or with the consent of any Person who at the time
is the Holder of any Security shall be conclusive and binding in respect of such Security upon all future Holders thereof or of any Security
or Securities which may be issued for or in lieu thereof in whole or in part, whether or not such Security shall have noted thereon the
fact that such request or consent had been made or given.
(i)
The Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order, approval, bond, debenture or other paper or document reasonably
believed by it to be genuine and to have been signed or presented by the proper party or parties.
(j)
The Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders of the Securities, pursuant to any provision of this Indenture, unless one or more of the Holders
of the Securities shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses and
liabilities which may be incurred by it therein or thereby.
(k)
The Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within
its discretion or within the rights or powers conferred upon it by this Indenture.
(l)
The Trustee shall not be deemed to have knowledge or notice of any Default or Event of Default unless a Responsible Officer has
received written notice thereof or unless the Company or the Holders of not less than 25% of the Outstanding Securities of any series
notify the Trustee thereof.
(m)
The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of Debt or other paper
or document, but the Trustee, may, but shall not be required to, make further inquiry or investigation into such facts or matters as it
may see fit.
(n)
The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
(o)
In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(p)
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages,
accidents, acts of war or terrorism, civil or military disturbances, pandemics or epidemics, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood
that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance
as soon as practicable under the circumstances.
(q)
The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture.
Section 11.02
Duties of Trustee.
(a)
If one or more of the Events of Default specified in Section 7.01 with respect to the Securities of any series shall have happened,
then, during the continuance thereof, the Trustee shall, with respect to such Securities, exercise such of the rights and powers vested
in it by this Indenture, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use
under the circumstances in the conduct of such person’s own affairs.
(b)
None of the provisions of this Indenture shall be construed as relieving the Trustee from liability for its own negligent action,
negligent failure to act, or its own willful misconduct, except that, anything in this Indenture contained to the contrary notwithstanding,
(i)
unless and until an Event of Default specified in Section 7.01 with respect to the Securities of any series shall have happened
which at the time is continuing,
(A)
the Trustee undertakes to perform such duties and only such duties with respect to the Securities of that series as are specifically
set out in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee, whose duties
and obligations shall be determined solely by the express provisions of this Indenture; and
(B)
the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, in
the absence of bad faith on the part of the Trustee, upon certificates and opinions furnished to it pursuant to the express provisions
of this Indenture; but in the case of any such certificates or opinions which, by the provisions of this Indenture, are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts, statements,
opinions or conclusions stated therein);
(ii)
the Trustee shall not be liable to any Holder of Securities or to any other Person for any error of judgment made in good faith
by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii)
the Trustee shall not be liable to any Holder of Securities or to any other Person with respect to any action taken or omitted
to be taken by it in good faith, in accordance with the direction of Securityholders given as provided in Section 7.06, relating to the
time, method and place of conducting any proceeding for any remedy available to it or exercising any trust or power conferred upon it
by this Indenture.
(c)
None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d)
Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of this Section 11.02.
Section 11.03
Notice of Defaults. Within 90 days after the occurrence thereof, and if known to the Trustee, the Trustee shall give to
the Holders of the Securities of a series notice of each Default or Event of Default with respect to the Securities of such series known
to the Trustee, by transmitting such notice to Holders at their addresses as the same shall then appear on the Register of the Company,
unless such Default shall have been cured or waived before the giving of such notice (the term “Default” being hereby defined
to be the events specified in Section 7.01, which are, or after notice or lapse of time or both would become, Events of Default as defined
in said Section). Except in the case of a Default or Event of Default in payment of the principal of, premium, if any, or interest on
any of the Securities of such series when and as the same shall become payable, or to make any sinking fund payment as to Securities
of the same series, the Trustee shall be protected in withholding such notice, if and so long as a Responsible Officer or Responsible
Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Holders of the Securities
of such series.
Section 11.04
Eligibility; Disqualification.
(a)
The Trustee shall at all times satisfy the requirements of TIA Section 310(a). The Trustee shall have a combined capital and surplus
of at least $50 million as set forth in its most recent published annual report of condition, and shall have a Corporate Trust Office.
If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 11.04, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
(b)
The Trustee shall comply with TIA Section 310(b); provided, however, that there shall be excluded from the operation
of TIA Section 310(b)(i) any indenture or indentures under which other securities or certificates of interest or participation in other
securities of the Company are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(i) are met. If the Trustee
has or shall acquire a conflicting interest within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Indenture. If Section 310(b) of the Trust Indenture Act is amended any time after the date of this Indenture to change the
circumstances under which a Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series or to
change any of the definitions in connection therewith, this Section 11.04 shall be automatically amended to incorporate such changes.
Section 11.05
Resignation and Notice; Removal. The Trustee, or any successor to it hereafter appointed, may at any time resign and be
discharged of the trusts hereby created with respect to any one or more or all series of Securities by giving to the Company notice in
writing. Such resignation shall take effect upon the appointment of a successor Trustee and the acceptance of such appointment by such
successor Trustee. Any Trustee hereunder may be removed with respect to any series of Securities at any time by the filing with such Trustee
and the delivery to the Company of an instrument or instruments in writing signed by the Holders of a majority in principal amount of
the Securities of such series then Outstanding, specifying such removal and the date when it shall become effective.
If at any time:
(1)
the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company
or by any Holder who has been a bona fide Holder of a Security for at least six months (or, if it is a shorter period, the period since
the initial issuance of the Securities of such series), or
(2)
the Trustee shall cease to be eligible under Section 11.04 and shall fail to resign after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a Security for at least six months (or, if it is a shorter period, the period
since the initial issuance of the Securities of such series), or
(3)
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by written notice to the Trustee
may remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e), any Securityholder
who has been a bona fide Holder of a Security for at least six months (or, if it is a shorter period, the period since the initial issuance
of the Securities of such series) may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
Upon its resignation or removal, any Trustee shall
be entitled to the payment of reasonable compensation for the services rendered hereunder by such Trustee and to the payment of all reasonable
expenses incurred hereunder and all moneys then due to it hereunder. The Trustee’s rights to indemnification provided in Section
11.01(a) shall survive its resignation or removal.
Section 11.06
Successor Trustee by Appointment.
(a)
In case at any time the Trustee shall resign, or shall be removed (unless the Trustee shall be removed as provided in Section 11.05,
in which event the vacancy shall be filled as provided in said subdivision), or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or if a receiver of the Trustee or of its property shall be appointed, or if any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation with respect to
the Securities of one or more series, a successor Trustee with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any series) may be appointed with respect to the Securities of each
such series by the Holders of a majority in principal amount of the Securities of such series then Outstanding, by an instrument or instruments
in writing signed in duplicate by such Holders and filed, one original thereof with the Company and the other with the successor Trustee;
but, until a successor Trustee shall have been so appointed by the Holders of Securities of any such series as herein authorized, the
Company, or, in case all or substantially all the assets of the Company shall be in the possession of one or more custodians or receivers
lawfully appointed, or of trustees in bankruptcy or reorganization proceedings (including a trustee or trustees appointed under the provisions
of the federal bankruptcy laws, as now or hereafter constituted), or of assignees for the benefit of creditors, such receivers, custodians,
trustees or assignees, as the case may be, by an instrument in writing, shall appoint a successor Trustee with respect to the Securities
of such series. Subject to the provisions of Sections 11.04 and 11.05, upon the appointment as aforesaid of a successor Trustee with respect
to the Securities of any series, the Trustee with respect to the Securities of such series shall cease to be Trustee hereunder. After
any such appointment other than by the Holders of Securities of any series, the Person making such appointment shall forthwith cause notice
thereof to be mailed to the Holders of Securities of such series at their addresses as the same shall then appear on the Register of the
Company but any successor Trustee with respect to the Securities of such series so appointed shall, immediately and without further act,
be superseded by a successor Trustee appointed by the Holders of Securities of such series in the manner above prescribed, if such appointment
be made prior to the expiration of one year from the date of the mailing of such notice by the Company, or by such receivers, trustees
or assignees.
(b)
If any Trustee with respect to the Securities of any series shall resign or be removed and a successor Trustee shall not have been
appointed by the Company or by the Holders of the Securities of such series or, if any successor Trustee so appointed shall not have accepted
its appointment within 30 days after such appointment shall have been made, the resigning Trustee at the expense of the Company may apply
to any court of competent jurisdiction for the appointment of a successor Trustee. If in any other case a successor Trustee shall not
be appointed pursuant to the foregoing provisions of this Section 11.06 within three months after such appointment might have been made
hereunder, the Holder of any Security of the applicable series or any retiring Trustee at the expense of the Company may apply to any
court of competent jurisdiction to appoint a successor Trustee. Such court may thereupon, in any such case, after such notice, if any,
as such court may deem proper and prescribe, appoint a successor Trustee.
(c)
Any successor Trustee appointed hereunder with respect to the Securities of one or more series shall execute, acknowledge and
deliver to its predecessor Trustee and to the Company, or to the receivers, trustees, assignees or court appointing it, as the case may
be, an instrument accepting such appointment hereunder, and thereupon such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations with respect to such series of
such predecessor Trustee with like effect as if originally named as Trustee hereunder, and such predecessor Trustee, upon payment of its
charges and disbursements then unpaid, shall thereupon become obligated to pay over, and such successor Trustee shall be entitled to receive,
all moneys and properties held by such predecessor Trustee as Trustee hereunder with respect to the Securities of such series, subject
nevertheless to its lien provided for in Section 11.01(a). Nevertheless, on the written request of the Company or of the successor Trustee
or of the Holders of at least 10% in principal amount of the Securities of any such series then Outstanding, such predecessor Trustee,
upon payment of its said charges and disbursements, shall execute and deliver an instrument transferring to such successor Trustee upon
the trusts herein expressed all the rights, powers and trusts of such predecessor Trustee with respect to the Securities of such series
and shall assign, transfer and deliver to the successor Trustee all moneys and properties held by such predecessor Trustee with respect
to the Securities of such series, subject nevertheless to its lien provided for in Section 11.01(a); and, upon request of any such successor
Trustee or the Company shall make, execute, acknowledge and deliver any and all instruments in writing for more fully and effectually
vesting in and confirming to such successor Trustee all such authority, rights, powers, trusts, immunities, duties and obligations.
Section 11.07
Successor Trustee by Merger. Any Person into which the Trustee or any successor to it in the trusts created by this Indenture
shall be merged or converted, or any Person with which it or any successor to it shall be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee or any such successor to it shall be a party, or any Person to which the Trustee
or any successor to it shall sell or otherwise transfer all or substantially all of the corporate trust business of the Trustee, shall
be the successor Trustee under this Indenture without the execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that such Person shall be otherwise qualified and eligible under this Article. In case at the time such
successor to the Trustee shall succeed to the trusts created by this Indenture with respect to one or more series of Securities, any of
such Securities shall have been authenticated but not delivered by the Trustee then in office, any successor to such Trustee may adopt
the certificate of authentication of any predecessor Trustee, and deliver such Securities so authenticated; and in case at that time any
of the Securities shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name
of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificates shall have the full force
which it is anywhere in the Securities or in this Indenture provided that the certificate of the Trustee shall have; provided,
however, that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
Section 11.08
Right to Rely on Officer’s Certificate. Whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence, bad faith or willful misconduct
on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate with respect thereto
delivered to the Trustee, and such Officer’s Certificate, in the absence of negligence, bad faith or willful misconduct on the part
of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture
upon the faith thereof.
Section 11.09
Appointment of Authenticating Agent. The Trustee may appoint an agent (the “Authenticating Agent”) acceptable to the
Company to authenticate the Securities, and the Trustee shall give written notice of such appointment to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve. Unless limited by the terms of such appointment, any such Authenticating
Agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by the Authenticating Agent. Securities so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
Each Authenticating Agent shall at all times be
a corporation organized and doing business and in good standing under the laws of the United States, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Article XI, the combined
capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Article XI, it shall resign immediately in the manner and with the effect specified in this Article XI.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business
of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under
this Article XI, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section 11.09, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give
written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve.
Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section 11.09.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services under this Section 11.09.
Section 11.10
Communications by Securityholders with Other Securityholders. Holders of Securities may communicate pursuant to Section
312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or the Securities. The Company,
the Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the Trust Indenture Act with respect to such
communications.
Section 11.11
FATCA. The Company agrees (i) to provide the Trustee with such reasonable information as it has in its possession to enable
the Trustee to determine whether any payments pursuant to the Indenture are subject to the withholding requirements described in Section
1471(b) of the US Internal Revenue Code of 1986 (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474
of the Code and any regulations, or agreements thereunder or official interpretations thereof (“Applicable Law”), and (ii)
that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to
comply with Applicable Law, for which the Trustee shall not have any liability.
Article
XII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 12.01
Applicability of Article. The provisions of this Article shall be applicable to the Securities of all series issued pursuant
to this Indenture, except as otherwise specified pursuant to Section 3.01 for Securities of any particular series of Securities.
Section 12.02
Satisfaction and Discharge of Indenture. This Indenture, with respect to the Securities of any series (if all series issued
under this Indenture are not to be affected), shall, upon Company Order, cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of such Securities herein expressly provided for and the rights of the Holders of the Securities
of such series to receive, the principal of and premium, if any, and interest on such Securities as and when the same shall become due
and payable and except as otherwise provided in the last paragraph of this Section 12.02), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Securities of such series,
when,
(a)
either:
(i)
all Securities of such series theretofore authenticated and delivered (other than (A) Securities that have been destroyed, lost
or stolen and that have been replaced or paid as provided in Section 3.07 and (B) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust,
as provided in Section 6.03(e)) have been delivered to the Trustee for cancellation; or
(ii)
all Securities of such series not theretofore delivered to the Trustee for cancellation,
(A)
have become due and payable, or
(B)
will become due and payable at their Stated Maturity within one year, or
(C)
if redeemable at the option of the Company (including, without limitation, by operation of any mandatory sinking fund), are to
be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or (C) above, has
irrevocably deposited or caused to be deposited with the Trustee funds in trust for the purpose an amount in cash in the Currency in
which such Securities are payable (subject to Section 12.08) sufficient to pay and discharge the entire indebtedness on such Securities
for principal and premium, if any, and interest to the date of such deposit (in the case of Securities that have become due and payable)
or to the Stated Maturity thereof or, in the case of Securities of such series which are to be called for redemption as contemplated
by (C) above, the applicable Redemption Date, as the case may be, and including any mandatory sinking fund payments as and when the same
shall become due and payable; provided, however, that, if a Default of the nature described in clauses (e) or (f) of Section
7.01 shall have occurred at any time during the period ending on and including the 91st day after the date of such deposit or if the
Trustee or any Paying Agent is required to return the monies then on deposit with or held by the Trustee or such Paying Agent to the
Company or to a trustee in bankruptcy, receiver, conservator or other similar Person, or the Trustee or any Paying Agent is not permitted
to apply any such funds to pay the principal of and premium, if any, and interest on the Securities of such series (including to make
sinking fund payments) as and when the same shall become due and payable, the obligations of the Company under this Indenture with respect
to such Securities shall not be deemed terminated or discharged;
(b)
the Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to the Securities of such
series; and
(c)
the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of any series, the obligations of the Company to the Trustee under Section 11.01, the provisions of Sections
3.04, 3.05, 3.06, 3.07, 3.10, 6.02 and 6.03 and this Article XII, and, if the Securities of such series are to be redeemed prior to their
Stated Maturity (including, without limitation, pursuant to a mandatory sinking fund), the provisions of Article IV hereof, and, if the
Securities of such series are convertible into or exchangeable for other securities or property, the rights of the Holders of such Securities
to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into other securities or property,
and, if money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the obligations of the Trustee under
Section 12.07 and Section 6.03(e) shall survive such satisfaction and discharge.
Section 12.03
Defeasance and Covenant Defeasance upon Deposit of Moneys or U.S. Government Obligations. At the Company’s option,
either (x) the Company shall be deemed to have been Discharged (as defined below) from its obligations with respect to Securities of any
series on the first day after the applicable conditions set forth below have been satisfied or (y) the Company shall cease to be under
any obligation to comply with any term, provision or condition set forth in Section 6.08 or Section 10.02 with respect to Securities of
any series (and, if so specified pursuant to Section 3.01, any other restrictive covenant added for the benefit of such series pursuant
to Section 3.01) but, except as specified above, the remainder of this Indenture and the Securities of such series shall be unaffected
thereby (“covenant defeasance”) upon the satisfaction of the applicable conditions set forth below:
(a)
the Company shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust, specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series (i) money in the Currency
in which such Securities are payable in an amount, or (ii) U.S. Government Obligations (as defined below) that, through the payment of
interest and principal in respect thereof in accordance with their terms, will provide, not later than one day before the due date of
any payment, money in the Currency in which such Securities are payable in an amount, or (iii) a combination of (i) and (ii), sufficient
(without consideration of any reinvestment of such principal and interest) to pay and discharge each installment of principal (including
any mandatory sinking fund payments) of and premium, if any, and interest on, the Outstanding Securities of such series on the dates
such installments of interest or principal and premium are due and, if the Securities of such series are to be called for redemption
as described in clause (d) below, to pay and discharge the Redemption Price on the Securities called for redemption on the applicable
Redemption Date;
(b)
no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit (other
than a Default resulting from the borrowing of funds and the grant of any related liens to be applied to such deposit) and, solely in
the case of Discharge pursuant to clause (x) of the first paragraph of this Section 12.03, no Default with respect to the Securities of
such series under either clause (e) or (f) of Section 7.01 shall have occurred at any time during the period ending on and including the
91st day after the date of such deposit;
(c)
the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Company’s exercise of its option
under this Section 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 option had not been exercised and, in the case of the Securities of such series being Discharged pursuant to
clause (x) of the first paragraph of this Section 12.03, such Opinion of Counsel shall be based upon and accompanied by a ruling to that
effect received by the Company from or published by the Internal Revenue Service;
(d)
if the monies or U.S. Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient
to pay the principal of and premium, if any, and interest on the Securities of such series (including, without limitation, any mandatory
sinking fund payment) or any portion thereof to be redeemed on a particular Redemption Date (including, without limitation, pursuant to
a mandatory sinking fund), the Company shall have given to the Trustee irrevocable instructions to redeem such Securities on such date
and shall have made arrangements satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the name, and
at the expense, of the Company; and
(e)
the Company shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions
precedent to such action under this Indenture have been complied with.
“Discharged” means, with respect to
the Securities of any series, that the Company shall be deemed to have paid and discharged the entire indebtedness represented by, and
obligations under, the Securities of such series and to have satisfied all the obligations under this Indenture relating to the Securities
of such series (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the same), except for the
following, all of which shall survive such Discharge and remain in full force and effect with respect to the Securities of such series:
(A) the rights of Holders of Securities of such series to receive, from the trust fund described in clause (a) above, payment of the principal
of and premium, if any, and interest on such Securities when such payments are due, (B) Sections 3.04, 3.05, 3.06, 3.07, 3.10, 6.02 and
6.03, (C) if the Securities of such series are to be redeemed prior to their Stated Maturity, the provisions of Article IV hereof, (D)
if the Securities of such series are convertible into or exchangeable for other securities or property, the rights of the Holders of such
Securities to convert or exchange, and the obligations of the Company to convert or exchange, such Securities into such other securities
or property, (E) the provisions of this Article XII and (F) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
“U.S. Government Obligations”
means securities that are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged
or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the
timely of payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, that, in either
case under clauses (i) or (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a
depositary receipt issued by a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific
payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a
depositary receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of the U.S. Government Obligation evidenced by such depositary
receipt.
Section 12.04
Repayment to Company. The Trustee and any Paying Agent shall promptly pay to the Company (or to its designee) upon delivery
of an Officer’s Certificate any moneys or U.S. Government Obligations deposited pursuant to Section 12.03 with respect to the Securities
of any series and held by them that are in excess of the monies and/or U.S. Government Obligations that would be required to be deposited
at such time to effect the Discharge or covenant defeasance, as applicable, with respect to the Securities of such series in accordance
with Section 12.03, including any such moneys or obligations held by the Trustee under any escrow trust agreement entered into pursuant
to Section 12.06. The provisions of Section 6.03(e) shall apply to any money held by the Trustee or any Paying Agent under this Article.
Section 12.05
Indemnity for U.S. Government Obligations. The Company shall pay and shall indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the deposited U.S. Government Obligations or the principal or interest received on such U.S.
Government Obligations.
Section 12.06
Deposits to Be Held in Escrow. Any deposits with the Trustee referred to in Section 12.03 above shall be irrevocable (except
to the extent provided in Sections 12.04 and 6.03(e)) and shall be made under the terms of an escrow trust agreement. If any Outstanding
Securities of a series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in
accordance with any mandatory or optional sinking fund requirement, the applicable escrow trust agreement shall provide therefor and the
Company shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name,
and at the expense, of the Company.
Section 12.07
Application of Trust Money.
(a)
Neither the Trustee nor any other Paying Agent shall be required to pay interest on any moneys deposited pursuant to the provisions
of this Indenture, except such as it shall agree with the Company in writing to pay thereon.
(b)
Subject to Section 6.03(e), any monies and U.S. Government Obligations which at any time shall be deposited by the Company or on
its behalf with the Trustee or any other Paying Agent for the purpose of paying the principal of, premium, if any, and interest on any
of the Securities shall be and are hereby assigned, transferred and set over to the Trustee or such other Paying Agent in trust for the
respective Holders of the Securities for the purpose for which such moneys shall have been deposited, and such funds shall be applied
by the Trustee or Paying Agent in accordance with the provisions of such Securities and this Indenture to the payment of all sums due
and to become due on such Securities in respect of principal and premium, if any, and interest; but such moneys need not be segregated
from other funds except to the extent required by law. Anything in this Indenture to the contrary notwithstanding, neither the Company
nor any of its Subsidiaries nor any of their respective Affiliates may act as Paying Agent for any Securities in respect of which money
or U.S. Government Obligations have been deposited pursuant to this Article XII.
Section 12.08
Deposits of Non-U.S. Currencies. Notwithstanding the foregoing provisions of this Article, if the Securities of any series are
payable in a Currency other than U.S. Dollars, the Currency or the nature of the government obligations to be deposited with the Trustee
under the foregoing provisions of this Article shall be as set forth in the Officer’s Certificate or established in the supplemental
indenture under which the terms of the Securities of such series have been established pursuant to Section 3.01.
Article
XIII
IMMUNITY OF CERTAIN PERSONS
Section 13.01
No Personal Liability. No recourse shall be had for the payment of the principal of, or the premium, if any, or interest
on, any Security or for any claim based thereon or otherwise in respect thereof or of the Debt represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, stockholder, officer or director, as such, past, present or future,
of the Company or of any successor corporation, either directly or through the Company or any successor corporation, whether by virtue
of any constitutional provision, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
agreed and understood that this Indenture and the Securities are solely corporate obligations, and that no personal liability whatsoever
shall attach to, or be incurred by, any incorporator, stockholder, officer or director, as such, past, present or future, of the Company
or of any successor corporation, either directly or through the Company or any successor corporation, because of the incurring of the
Debt hereby authorized or under or by reason of any of the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Securities, or to be implied herefrom or therefrom, and that all liability, if any, of that character against every such
incorporator, stockholder, officer and director is, by the acceptance of the Securities and as a condition of, and as part of the consideration
for, the execution of this Indenture and the issue of the Securities expressly waived and released.
Article
XIV
SUPPLEMENTAL INDENTURES
Section 14.01
Without Consent of Securityholders. Except as otherwise provided as contemplated by Section 3.01 with respect to any series
of Securities, the Company and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any one or more of or all the following purposes:
(a)
to add to the covenants and agreements of the Company, to be observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, and to add Events of Default, in each case for the protection or benefit of the Holders of all or any
series of the Securities (and if such covenants, agreements and Events of Default are to be for the benefit of fewer than all series of
Securities, stating that such covenants, agreements and Events of Default are expressly being included for the benefit of such series
as shall be identified therein), or to surrender any right or power herein conferred upon the Company;
(b)
to delete or modify any Events of Default with respect to any series of the Securities, the form and terms of which are first being
established pursuant to such supplemental indenture as permitted in Section 3.01 (and, if any such Event of Default is applicable to fewer
than all such series of the Securities, specifying the series to which such Event of Default is applicable), and to specify the rights
and remedies of the Trustee and the Holders of such Securities in connection therewith, provided that such supplemental indenture
shall not apply to any Outstanding Security of any series created prior to the date of such supplemental indenture;
(c)
to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become
effective only when there is no Outstanding Security of any series created prior to the execution of such supplemental indenture that
is entitled to the benefit of such provision and as to which such supplemental indenture would apply;
(d)
to evidence the succession of another entity to the Company, or successive successions, and the assumption by such successor of
the covenants and obligations of the Company contained in the Securities of one or more series and in this Indenture or any supplemental
indenture;
(e)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to one or more series of
Securities and to add to or change any of the provisions of this Indenture as shall be necessary for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 11.06(c);
(f)
to secure any series of Securities;
(g)
to evidence any changes to this Indenture pursuant to Sections 11.05, 11.06 or 11.07 hereof as permitted by the terms thereof;
(h)
to cure any ambiguity or inconsistency or to correct or supplement any provision contained herein or in any indenture supplemental
hereto which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or to conform
the terms hereof, as amended and supplemented, that are applicable to the Securities of any series to the description of the terms of
such Securities in the offering memorandum, prospectus supplement or other offering document applicable to such Securities at the time
of initial sale thereof;
(i)
to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments
to the Trust Indenture Act;
(j)
to add guarantors or co-obligors with respect to any series of Securities or to release guarantors from their guarantees of Securities
in accordance with the terms of the applicable series of Securities;
(k)
to make any change in any series of Securities that does not adversely affect in any material respect the rights of the Holders
of such Securities;
(l)
to provide for uncertificated securities in addition to certificated securities;
(m)
to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities; provided that any such action shall not adversely affect the interests of the Holders
of Securities of such series or any other series of Securities;
(n)
to prohibit the authentication and delivery of additional series of Securities; or
(o)
to establish the form and terms of Securities of any series as permitted in Section 3.01, or to authorize the issuance of additional
Securities of a series previously authorized or to add to the conditions, limitations or restrictions on the authorized amount, terms
or purposes of issue, authentication or delivery of the Securities of any series, as herein set forth, or other conditions, limitations
or restrictions thereafter to be observed.
Subject to the provisions of Section 14.03, the
Trustee is authorized to join with the Company in the execution of any such supplemental indenture, to make the further agreements and
stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property or
assets thereunder.
Any supplemental indenture authorized by the provisions
of this Section 14.01 may be executed by the Company and the Trustee without the consent of the Holders of any of the Securities at the
time Outstanding.
Section 14.02
With Consent of Securityholders; Limitations.
(a)
With the consent of the Holders (evidenced as provided in Article VIII) of a majority in aggregate principal amount of the Outstanding
Securities of each series affected by such supplemental indenture voting separately, the Company and the Trustee may, from time to time
and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any provisions of this Indenture or of modifying in any manner the rights of the Holders of the Securities of
such series to be affected; provided, however, that no such supplemental indenture shall, without the consent of the Holder
of each Outstanding Security of each such series affected thereby,
(i)
extend the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount
thereof or the interest thereon or any premium thereon, or extend the Stated Maturity of, or change the place of payment where, or the
Currency in which the principal of and premium, if any, or interest on such Security is denominated or payable, or reduce the amount of
the principal of an Original Issue Discount Security that would be due and payable upon acceleration of the Maturity thereof pursuant
to Section 7.02, change the ranking of any Security or, in the case of any subordinated Security, the definition of Senior Debt applicable
thereto, or impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or materially adversely affect the economic terms of any right to convert or exchange
any Security as may be provided pursuant to Section 3.01; or
(ii)
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required
for any supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this
Indenture or certain Defaults hereunder and their consequences provided for in this Indenture, or reduce the requirements under Article
IX for quorum or voting; or
(iii)
modify any of the provisions of this Section, Section 7.06 or Section 6.06, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect
to changes in the references to “the Trustee” and concomitant changes in this Section and Section 6.06, or the deletion of
this proviso, in accordance with the requirements of Sections 11.06 and 14.01(f); or
(iv)
modify, without the written consent of the Trustee, the rights, duties or immunities of the Trustee; or
(v)
make any change that adversely affects the right, if any, to convert or exchange any Security for other securities or property
in accordance with its terms.
(b)
A supplemental indenture that changes or eliminates any provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities
of any other series.
(c)
It shall not be necessary for the consent of the Securityholders under this Section 14.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
(d)
The Company may set a record date for purposes of determining the identity of the Holders of each series of Securities entitled
to give a written consent or waive compliance by the Company as authorized or permitted by this Section. Such record date shall not be
more than 30 days prior to the first solicitation of such consent or waiver or the date of the most recent list of Holders furnished to
the Trustee prior to such solicitation pursuant to Section 312 of the Trust Indenture Act.
(e)
Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of this Section
14.02, the Company shall mail a notice, setting forth in general terms the substance of such supplemental indenture, to the Holders of
Securities at their addresses as the same shall then appear in the Register of the Company. Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 14.03
Trustee Protected. Upon the request of the Company, accompanied by the Officer’s Certificate and Opinion of Counsel
required by Section 16.01 (and stating that such supplemental indenture is authorized or permitted by this Indenture) and evidence reasonably
satisfactory to the Trustee of consent of the Holders if the supplemental indenture is to be executed pursuant to Section 14.02, the Trustee
shall join with the Company in the execution of said supplemental indenture unless said supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into said supplemental indenture. The Trustee shall be fully protected in relying upon such Officer’s Certificate
and an Opinion of Counsel.
Section 14.04
Effect of Execution of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions
of this Article XIV, this Indenture shall be deemed to be modified and amended in accordance therewith and, except as herein otherwise
expressly provided, the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the Holders of all of the Securities or of the Securities of any series affected, as the case may be, shall thereafter
be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 14.05
Notation on or Exchange of Securities. Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a notation in the form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee shall so determine, new Securities so modified as to conform,
in the opinion of the Trustee and the Board of Directors of the Company, to any modification of this Indenture contained in any such
supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for the
Securities then Outstanding in equal aggregate principal amounts, and such exchange shall be made without cost to the Holders of the
Securities.
Section 14.06
Conformity with TIA. Every supplemental indenture executed pursuant to the provisions of this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Article
XV
SUBORDINATION OF SECURITIES
Section 15.01
Agreement to Subordinate. In the event a series of Securities is designated as subordinated pursuant to Section 3.01, and
except as otherwise provided in an Officer’s Certificate or in one or more indentures supplemental hereto, the Company, for itself,
its successors and assigns, covenants and agrees, and each Holder of Securities of such series by his, her or its acceptance thereof,
likewise covenants and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on each and all of the
Securities of such series is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment
to the prior payment in full of all Senior Debt. In the event a series of Securities is not designated as subordinated pursuant to Section
3.01(s), this Article XV shall have no effect upon the Securities.
Section 15.02
Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities. Subject to Section 15.01, upon any
distribution of assets of the Company upon any dissolution, winding up, liquidation or reorganization of the Company, whether in bankruptcy,
insolvency, reorganization or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of
the assets and liabilities of the Company or otherwise (subject to the power of a court of competent jurisdiction to make other equitable
provision reflecting the rights conferred in this Indenture upon the Senior Debt and the holders thereof with respect to the Securities
and the Holders thereof by a lawful plan of reorganization under applicable bankruptcy law):
(a)
the holders of all Senior Debt shall be entitled to receive payment in full of the principal thereof (and premium, if any) and
interest due thereon before the Holders of the Securities are entitled to receive any payment upon the principal (or premium, if any)
or interest, if any, on Debt evidenced by the Securities; and
(b)
any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities, to which
the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article XV shall be paid by the liquidation
trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or liquidating trustee
or otherwise, directly to the holders of Senior Debt or their representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior Debt may have been issued, ratably according to the aggregate amounts
remaining unpaid on account of the principal of (and premium, if any) and interest on the Senior Debt held or represented by each, to
the extent necessary to make payment in full of all Senior Debt remaining unpaid, after giving effect to any concurrent payment or distribution
to the holders of such Senior Debt; and
(c)
in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities
before all Senior Debt is paid in full, such payment or distribution shall be paid over, upon written notice to a Responsible Officer
of the Trustee, to the holder of such Senior Debt or his, her or its representative or representatives or to the trustee or trustees
under any indenture under which any instrument evidencing any of such Senior Debt may have been issued, ratably as aforesaid, as calculated
by the Company, for application to payment of all Senior Debt remaining unpaid until all such Senior Debt shall have been paid in full,
after giving effect to any concurrent payment or distribution to the holders of such Senior Debt.
(d)
Subject to the payment in full of all Senior Debt, the Holders of the Securities shall be subrogated to the rights of the holders
of Senior Debt (to the extent that distributions otherwise payable to such Holders have been applied to the payment of Senior Debt) to
receive payments or distributions of cash, property or securities of the Company applicable to Senior Debt until the principal of (and
premium, if any) and interest, if any, on the Securities shall be paid in full and no such payments or distributions to the Holders of
the Securities of cash, property or securities otherwise distributable to the holders of Senior Debt shall, as between the Company, its
creditors other than the holders of Senior Debt, and the Holders of the Securities be deemed to be a payment by the Company to or on account
of the Securities. It is understood that the provisions of this Article XV are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Debt, on the other hand. Nothing contained
in this Article XV or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Debt, and the Holders of the Securities, the obligation of the Company, which is unconditional and absolute,
to pay to the Holders of the Securities the principal of (and premium, if any) and interest, if any, on the Securities as and when the
same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of the Securities and
creditors of the Company other than the holders of Senior Debt, nor shall anything herein or in the Securities prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article XV of the holders of Senior Debt in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets of the Company referred to in this Article XV, the Trustee,
subject to the provisions of Section 15.06, shall be entitled to conclusively rely upon a certificate of the liquidating trustee or agent
or other person making any distribution to the Trustee for the purpose of ascertaining the Persons entitled to participate in such distribution,
the holders of Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereof and all other facts pertinent thereto or to this Article XV.
Section 15.03
No Payment on Securities in Event of Default on Senior Debt. Subject to Section 15.01, no payment by the Company on account
of principal (or premium, if any), sinking funds or interest, if any, on the Securities shall be made at any time if: (i) a default on
Senior Debt exists that permits the holders of such Senior Debt to accelerate its maturity and (ii) the default is the subject of judicial
proceedings or the Company has received notice of such default. The Company may resume payments on the Securities when full payment of
amounts then due for principal (premium, if any), sinking funds and interest on Senior Debt has been made or duly provided for in money
or money’s worth.
In the event that, notwithstanding the foregoing,
any payment shall be received by the Trustee when such payment is prohibited by the preceding paragraph of this Section 15.03, such payment
shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Senior Debt or their respective
representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior Debt may have been issued, as
their respective interests may appear, as calculated by the Company, but only to the extent that the holders of such Senior Debt (or their
representative or representatives or a trustee) notify the Trustee in writing within 90 days of such payment of the amounts then due and
owing on such Senior Debt and only the amounts specified in such notice to the Trustee shall be paid to the holders of such Senior Debt.
Section 15.04
Payments on Securities Permitted. Subject to Section 15.01, nothing contained in this Indenture or in any of the Securities
shall (a) affect the obligation of the Company to make, or prevent the Company from making, at any time except as provided in Sections
15.02 and 15.03, payments of principal of (or premium, if any) or interest, if any, on the Securities or (b) prevent the application
by the Trustee of any moneys or assets deposited with it hereunder to the payment of or on account of the principal of (or premium, if
any) or interest, if any, on the Securities, unless a Responsible Officer of the Trustee shall have received at its Corporate Trust Office
written notice of any fact prohibiting the making of such payment from the Company or from the holder of any Senior Debt or from the
trustee for any such holder, together with proof satisfactory to the Trustee of such holding of Senior Debt or of the authority of such
trustee more than two Business Days prior to the date fixed for such payment.
Section 15.05
Authorization of Securityholders to Trustee to Effect Subordination. Subject to Section 15.01, each Holder of Securities
by his acceptance thereof authorizes and directs the Trustee on his, her or its behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article XV and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 15.06
Notices to Trustee. The Company shall give prompt written notice to a Responsible Officer of the Trustee of any fact known
to the Company that would prohibit the making of any payment of monies or assets to or by the Trustee in respect of the Securities of
any series pursuant to the provisions of this Article XV. Subject to Section 15.01, notwithstanding the provisions of this Article XV
or any other provisions of this Indenture, neither the Trustee nor any Paying Agent (other than the Company) shall be charged with knowledge
of the existence of any Senior Debt or of any fact which would prohibit the making of any payment of moneys or assets to or by the Trustee
or such Paying Agent, unless and until a Responsible Officer of the Trustee or such Paying Agent shall have received (in the case of a
Responsible Officer of the Trustee, at the Corporate Trust Office of the Trustee) written notice thereof from the Company or from the
holder of any Senior Debt or from the trustee for any such holder, together with proof satisfactory to the Trustee of such holding of
Senior Debt or of the authority of such trustee and, prior to the receipt of any such written notice, the Trustee shall be entitled in
all respects conclusively to presume that no such facts exist; provided, however, that if at least two Business Days prior
to the date upon which by the terms hereof any such moneys or assets may become payable for any purpose (including, without limitation,
the payment of either the principal (or premium, if any) or interest, if any, on any Security) a Responsible Officer of the Trustee shall
not have received with respect to such moneys or assets the notice provided for in this Section 15.06, then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and authority to receive such moneys or assets and to apply the same
to the purpose for which they were received, and shall not be affected by any notice to the contrary which may be received by it within
two Business Days prior to such date. The Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Debt (or a trustee on behalf of such holder) to establish that such a notice has been given by a holder
of Senior Debt or a trustee on behalf of any such holder. In the event that the Trustee determines in good faith that further evidence
is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant
to this Article XV, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any
other facts pertinent to the rights of such Person under this Article XV and, if such evidence is not furnished, the Trustee may defer
any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 15.07
Trustee as Holder of Senior Debt. Subject to Section 15.01, the Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XV in respect of any Senior Debt at any time held by it to the same extent as any other holder
of Senior Debt and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder. Nothing in
this Article XV shall apply to claims of, or payments to, the Trustee under or pursuant to Sections 7.05 or 11.01.
Section 15.08
Modifications of Terms of Senior Debt. Subject to Section 15.01, any renewal or extension of the time of payment of any Senior
Debt or the exercise by the holders of Senior Debt of any of their rights under any instrument creating or evidencing Senior Debt, including,
without limitation, the waiver of default thereunder, may be made or done all without notice to or assent from the Holders of the Securities
or the Trustee. To the fullest extent permitted by applicable law, no compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any liability or obligation under or in respect of, or of any of
the terms, covenants or conditions of any indenture or other instrument under which any Senior Debt is outstanding or of such Senior
Debt, whether or not such release is in accordance with the provisions of any applicable document, shall in any way alter or affect any
of the provisions of this Article XV or of the Securities relating to the subordination thereof.
Section 15.09
Reliance on Judicial Order or Certificate of Liquidating Agent. Subject to Section 15.01, upon any payment or distribution
of assets of the Company referred to in this Article XV, the Trustee and the Holders of the Securities shall be entitled to conclusively
rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating
trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this Article XV.
Section 15.10
Satisfaction and Discharge; Defeasance and Covenant Defeasance. Subject to Section 15.01, amounts and U.S. Government Obligations
deposited in trust with the Trustee pursuant to and in accordance with Article XII and not, at the time of such deposit, prohibited to
be deposited under Sections 15.02 or 15.03 shall not be subject to this Article XV.
Section 15.11
Trustee Not Fiduciary for Holders of Senior Debt. With respect to the holders of Senior Debt, the Trustee undertakes to
perform or observe only such of its covenants and obligations as are specifically set forth in this Article XV, and no implied covenants
or obligations with respect to the holders of Senior Debt shall be read into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Debt. The Trustee shall not be liable to any such holder if it shall pay
over or distribute to or on behalf of Holders of Securities or the Company, or any other Person, moneys or assets to which any holder
of Senior Debt shall be entitled by virtue of this Article XV or otherwise.
Article
XVI
MISCELLANEOUS PROVISIONS
Section 16.01
Certificates and Opinions as to Conditions Precedent.
(a)
Upon any request or application by the Company to the Trustee to take any action under any of the provisions of this Indenture,
the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent have been complied with.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificates provided pursuant to Section 6.05 of this Indenture) shall include
(i) a statement that the Person giving such certificate or opinion has read such covenant or condition; (ii) a brief statement as to
the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion
are based; (iii) a statement that, in the view or opinion of such Person, he or she has made such examination or investigation as is
necessary to enable such Person to express an informed view or opinion as to whether or not such covenant or condition has been complied
with; and (iv) a statement as to whether or not, in the view or opinion of such Person, such condition or covenant has been complied
with.
(c)
Any certificate, statement or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters upon which his or her certificate, statement or opinion
is based are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, upon
a certificate, statement or opinion of, or representations by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate, statement or opinion or representations with respect to such matters are erroneous.
(d)
Any certificate, statement or opinion of an officer of the Company or of counsel to the Company may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants, unless such officer
or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the accounting matters upon which his or her certificate, statement or opinion may be based are erroneous. Any certificate
or opinion of any firm of independent registered public accountants filed with the Trustee shall contain a statement that such firm is
independent.
(e)
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
(f)
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 16.02
Trust Indenture Act Controls. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or another provision included in this Indenture which is required to be included in this Indenture by any of the
provisions of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or incorporated provision shall control.
Section 16.03
Notices to the Company and Trustee. Any notice or demand authorized by this Indenture to be made upon, given or furnished
to, or filed with, the Company or the Trustee shall be sufficiently made, given, furnished or filed for all purposes if it shall be mailed,
delivered or telefaxed to:
(a)
the Company, at 4600 South Syracuse Street, Suite 500, Denver, Colorado 80237, Attention: General Counsel, or at such other address
as may have been furnished in writing to the Trustee by the Company.
(b)
the Trustee, at the Corporate Trust Office, with a copy to the Trustee at 333 South Hope Street, Suite 2525, Los Angeles, CA 90071,
Attention: Corporate Trust Unit.
Any such notice, demand or other document shall
be in the English language.
In addition to the foregoing, the Trustee shall
have the right to accept and act upon instructions, including funds transfer instructions (for the purposes of this Section, “Instructions”)
given pursuant to the Indenture and delivered using Electronic Means; provided, however, that the Company shall provide
to the Trustee an incumbency certificate listing authorized officers and containing specimen signatures of such authorized officers, which
incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects
to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s
understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the
identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have
been sent by an authorized officer listed on the incumbency certificate provided to the Trustee have been sent by such authorized officer.
The Company shall be responsible for ensuring that only authorized officers transmit such Instructions to the Trustee and that the Company
and all authorized officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes,
passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising
directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict
or are inconsistent with a subsequent written instruction. The Company agrees: (i) to assume all risks arising out of the use of Electronic
Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions,
and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with
the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions
than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission
of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv)
to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
Section 16.04
Notices to Securityholders; Waiver. Any notice required or permitted to be given to Securityholders shall be sufficiently
given (unless otherwise herein expressly provided),
(a)
if to Holders, if given in writing by first class mail, postage prepaid, or otherwise given pursuant to applicable Depositary procedures
to such Holders at their addresses as the same shall appear on the Register of the Company; provided, that in the event of suspension
of regular mail service or by reason of any other cause it shall be impracticable to give notice by mail, then such notification as shall
be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder; or
(b)
if a series of Securities has been issued in the form of one or more Global Securities through DTC as Depositary, notice may be
provided with respect to such series of Securities by delivery of such notice to DTC for posting through its “Legal Notice Service”
(LENS) or a successor system thereof.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance on such waiver. In any case where notice to Holders is given
by mail; neither the failure to mail such notice nor any defect in any notice so mailed to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders, and any notice that is mailed in the manner herein provided shall be conclusively presumed
to have been duly given. In any case where notice to Holders is given by publication, any defect in any notice so published as to any
particular Holder shall not affect the sufficiency of such notice with respect to other Holders, and any notice that is published in
the manner herein provided shall be conclusively presumed to have been duly given.
Section 16.05
Legal Holiday. Unless otherwise specified pursuant to Section 3.01, in any case where any Interest Payment Date, Redemption
Date or Maturity of any Security of any series shall not be a Business Day at any Place of Payment for the Securities of that series,
then payment of principal and premium, if any, or interest need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same force and effect as if made on such Interest Payment Date, Redemption
Date or Maturity and no interest shall accrue on such payment for the period from and after such Interest Payment Date, Redemption Date
or Maturity, as the case may be, to such Business Day if such payment is made or duly provided for on such Business Day.
Section 16.06
Effects of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
Section 16.07
Successors and Assigns. All covenants and agreements in this Indenture by the parties hereto shall bind their respective
successors and assigns and inure to the benefit of their permitted successors and assigns, whether so expressed or not.
Section 16.08
Separability Clause. In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 16.09
Benefits of Indenture. Nothing in this Indenture expressed and nothing that may be implied from any of the provisions hereof
is intended, or shall be construed, to confer upon, or to give to, any Person or corporation other than the parties hereto and their successors
and the Holders of the Securities any benefit or any right, remedy or claim under or by reason of this Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and agreements in this Indenture contained
shall be for the sole and exclusive benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 16.10
Counterparts Originals. This Indenture may be executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. The words “execution,”
“signed,” “signature,” and words of like import in this Indenture or in any other certificate, agreement or document
related to this Indenture shall include images of manually executed signatures transmitted by facsimile or other electronic format (including,
without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation,
DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other
record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and
enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable
law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records
Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the
Uniform Commercial Code. Without limitation to the foregoing, and anything in this Indenture to the contrary notwithstanding, (a) any
Officer’s Certificate, Company Order, Opinion of Counsel, Security endorsed on any Security, opinion of counsel, instrument, agreement
or other document delivered pursuant to this Indenture may be executed, attested and transmitted by any of the foregoing electronic means
and formats, (b) all references in Section 3.03 or elsewhere in this Indenture to the execution, attestation or authentication of any
Security, or any certificate of authentication appearing on or attached to any Security by means of a manual or facsimile signature shall
be deemed to include signatures that are made or transmitted by any of the foregoing electronic means or formats, and (c) any requirement
in the Indenture that any signature be made under a corporate seal (or facsimile thereof) shall not be applicable to the Securities.
Section 16.11
Governing Law; Waiver of Trial by Jury. This Indenture and the Securities shall be deemed to be contracts made under the
law of the State of New York, and for all purposes shall be governed by and construed in accordance with the law of said State.
EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY
BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE AND THE SECURITIES.
Section 16.12
Submission to Jurisdiction. The Company hereby irrevocably submits to the jurisdiction of any New York State court sitting
in the Borough of Manhattan in the City of New York or any federal court sitting in the Southern District of Manhattan in the City of
New York in respect of any suit, action or proceeding arising out of or relating to this Indenture, the Notes, and irrevocably accepts
for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts.
Section 16.13
Sanctions Representations.
(a)
The Company represents that neither the Company nor, to the knowledge of the Company, any of its affiliates, subsidiaries, directors
or officers are the subject of any sanctions enforced by the U.S. Government (including, without limitation, the Office of Foreign Assets
Control of the U.S. Department of the Treasury or the U.S. Department of State), the United Nations Security Council, the European Union,
His Majesty’s Treasury, or other relevant sanctions authority (collectively “Sanctions”); and
(b)
The Company covenants that it will not directly or indirectly use any funds received pursuant to this Indenture, (i) to fund or
facilitate any activities of or business with any Person who, at the time of such funding, is the subject of Sanctions, (ii) to fund or
facilitate any activities of or business with any country or territory that, at the time of such funding or facilitation, is the subject
of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any Person (in each case, except to the extent
permitted for a Person required to comply with such Sanctions).
IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed as of the date first written above.
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Healthpeak Properties, Inc., |
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as Issuer |
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By: |
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Name: |
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Title: |
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The Bank of New York Mellon Trust
Company, N.A., as Trustee |
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By: |
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Name: |
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Title: |
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[Signature Page to Base
Indenture]
Exhibit 4.6
HEALTHPEAK OP, LLC,
as Issuer,
HEALTHPEAK PROPERTIES, INC.,
as Guarantor,
THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A.
as Trustee
AMENDED AND RESTATED INDENTURE
Dated as of
February 10, 2023
DEBT SECURITIES
CONTENTS
Page
Article I
DEFINITIONS |
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| Section 1.01 |
Definitions |
3 |
| |
|
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Article II
FORMS OF SECURITIES |
| |
| Section 2.01 |
Terms of the Securities |
10 |
| Section 2.02 |
Form of Trustee’s Certificate of Authentication |
11 |
| Section 2.03 |
Form of Trustee’s Certificate of Authentication by an Authenticating Agent |
11 |
| |
|
Article III
THE DEBT SECURITIES |
| |
| Section 3.01 |
Amount Unlimited; Issuable in Series |
12 |
| Section 3.02 |
Denominations |
15 |
| Section 3.03 |
Execution, Authentication, Delivery and Dating |
15 |
| Section 3.04 |
Temporary Securities |
17 |
| Section 3.05 |
Registrar and Paying Agent |
17 |
| Section 3.06 |
Transfer and Exchange |
18 |
| Section 3.07 |
Mutilated, Destroyed, Lost and Stolen Securities |
21 |
| Section 3.08 |
Payment of Interest; Interest Rights Preserved |
21 |
| Section 3.09 |
Cancellation |
23 |
| Section 3.10 |
Computation of Interest |
23 |
| Section 3.11 |
Currency of Payments in Respect of Securities |
23 |
| Section 3.12 |
Judgments |
23 |
| Section 3.13 |
CUSIP Numbers |
24 |
| |
|
Article IV
REDEMPTION OF SECURITIES |
| |
| Section 4.01 |
Applicability of Right of Redemption |
24 |
| Section 4.02 |
Selection of Securities to be Redeemed |
24 |
| Section 4.03 |
Notice of Redemption |
24 |
| Section 4.04 |
Deposit of Redemption Price |
25 |
| Section 4.05 |
Securities Payable on Redemption Date |
25 |
| Section 4.06 |
Securities Redeemed in Part |
25 |
| |
|
|
Article V
SINKING FUNDS |
| |
| Section 5.01 |
Applicability of Sinking Fund |
26 |
| Section 5.02 |
Mandatory Sinking Fund Obligation |
26 |
| Section 5.03 |
Optional Redemption at Sinking Fund Redemption Price |
27 |
| Section 5.04 |
Application of Sinking Fund Payment |
27 |
Article VI
PARTICULAR COVENANTS OF THE ISSUER AND THE GUARANTOR |
| |
| Section 6.01 |
Payments of Securities |
28 |
| Section 6.02 |
Paying Agent |
28 |
| Section 6.03 |
To Hold Payment in Trust |
28 |
| Section 6.04 |
Merger, Consolidation and Sale of Assets |
30 |
| Section 6.05 |
Compliance Certificate |
30 |
| Section 6.06 |
Conditional Waiver by Holders of Securities |
30 |
| Section 6.07 |
Statement by Officers as to Default |
31 |
| Section 6.08 |
Maintenance of Insurance |
31 |
| |
|
| |
|
Article VII
REMEDIES OF TRUSTEE AND SECURITYHOLDERS |
| Section 7.01 |
Events of Default |
31 |
| Section 7.02 |
Acceleration; Rescission and Annulment |
32 |
| Section 7.03 |
Other Remedies |
34 |
| Section 7.04 |
Trustee as Attorney-in-Fact |
35 |
| Section 7.05 |
Priorities |
35 |
| Section 7.06 |
Control by Securityholders; Waiver of Past Defaults |
35 |
| Section 7.07 |
Limitation on Suits |
36 |
| Section 7.08 |
Undertaking for Costs |
36 |
| Section 7.09 |
Remedies Cumulative |
37 |
| |
|
Article VIII
CONCERNING THE SECURITYHOLDERS |
| |
| Section 8.01 |
Evidence of Action of Securityholders |
37 |
| Section 8.02 |
Proof of Execution or Holding of Securities |
37 |
| Section 8.03 |
Persons Deemed Owners |
38 |
| Section 8.04 |
Effect of Consents |
38 |
| |
|
Article IX
SECURITYHOLDERS’ MEETINGS |
| |
| Section 9.01 |
Purposes of Meetings |
38 |
| Section 9.02 |
Call of Meetings by Trustee |
39 |
| Section 9.03 |
Call of Meetings by Issuer or Securityholders |
39 |
| Section 9.04 |
Qualifications for Voting |
39 |
| Section 9.05 |
Regulation of Meetings |
39 |
| Section 9.06 |
Voting |
40 |
| Section 9.07 |
No Delay of Rights by Meeting |
40 |
| |
|
Article X
REPORTS BY THE ISSUER AND THE TRUSTEE AND SECURITYHOLDERS’ LISTS |
| |
| Section 10.01 |
Reports by Trustee |
40 |
| Section 10.02 |
Reports by the Guarantor |
41 |
| Section 10.03 |
Securityholders’ Lists |
42 |
Article XI
CONCERNING THE TRUSTEE |
| |
| Section 11.01 |
Rights of Trustees; Compensation and Indemnity |
42 |
| Section 11.02 |
Duties of Trustee |
44 |
| Section 11.03 |
Notice of Defaults |
45 |
| Section 11.04 |
Eligibility; Disqualification |
46 |
| Section 11.05 |
Resignation and Notice; Removal |
46 |
| Section 11.06 |
Successor Trustee by Appointment |
47 |
| Section 11.07 |
Successor Trustee by Merger |
48 |
| Section 11.08 |
Right to Rely on Officer’s Certificate |
48 |
| Section 11.09 |
Appointment of Authenticating Agent |
49 |
| Section 11.10 |
Communications by Securityholders with Other Securityholders |
49 |
| Section 11.11 |
FATCA |
49 |
| |
|
|
Article XII
SATISFACTION AND DISCHARGE; DEFEASANCE |
| |
| Section 12.01 |
Applicability of Article |
50 |
| Section 12.02 |
Satisfaction and Discharge of Indenture |
50 |
| Section 12.03 |
Defeasance and Covenant Defeasance upon Deposit of Moneys or U.S. Government Obligations |
51 |
| Section 12.04 |
Repayment to Issuer |
53 |
| Section 12.05 |
Indemnity for U.S. Government Obligations |
53 |
| Section 12.06 |
Deposits to Be Held in Escrow |
53 |
| Section 12.07 |
Application of Trust Money |
53 |
| Section 12.08 |
Deposits of Non-U.S. Currencies |
54 |
| |
|
|
Article XIII
IMMUNITY OF CERTAIN PERSONS |
| Section 13.01 |
No Personal Liability |
54 |
| |
|
|
Article XIV
SUPPLEMENTAL INDENTURES |
| |
| Section 14.01 |
Without Consent of Securityholders |
54 |
| Section 14.02 |
With Consent of Securityholders; Limitations |
56 |
| Section 14.03 |
Trustee Protected |
57 |
| Section 14.04 |
Effect of Execution of Supplemental Indenture |
57 |
| Section 14.05 |
Notation on or Exchange of Securities |
58 |
| Section 14.06 |
Conformity with TIA |
58 |
| |
|
|
Article XV
SUBORDINATION OF SECURITIES |
| |
| Section 15.01 |
Agreement to Subordinate |
58 |
| Section 15.02 |
Distribution on Dissolution, Liquidation and Reorganization; Subrogation of Securities |
58 |
| Section 15.03 |
No Payment on Securities in Event of Default on Senior Debt |
59 |
| Section 15.04 |
Payments on Securities Permitted |
60 |
| Section 15.05 |
Authorization of Securityholders to Trustee to Effect Subordination |
60 |
| Section 15.06 |
Notices to Trustee |
60 |
| Section 15.07 |
Trustee as Holder of Senior Debt |
61 |
| Section 15.08 |
Modifications of Terms of Senior Debt |
61 |
| Section 15.09 |
Reliance on Judicial Order or Certificate of Liquidating Agent |
61 |
| Section 15.10 |
Satisfaction and Discharge; Defeasance and Covenant Defeasance |
61 |
| Section 15.11 |
Trustee Not Fiduciary for Holders of Senior Debt |
61 |
| |
|
Article XVI
GUARANTEES |
| |
| Section 16.01 |
Applicability of Article; Guarantee |
62 |
| Section 16.02 |
Limitation on Guarantor Liability |
63 |
| Section 16.03 |
Execution and Delivery of Guarantee |
63 |
| |
|
Article XVII
MISCELLANEOUS PROVISIONS |
| |
| Section 17.01 |
Certificates and Opinions as to Conditions Precedent |
64 |
| Section 17.02 |
Trust Indenture Act Controls |
65 |
| Section 17.03 |
Notices to the Issuer and Trustee |
65 |
| Section 17.04 |
Notices to Securityholders; Waiver |
65 |
| Section 17.05 |
Legal Holiday |
66 |
| Section 17.06 |
Effects of Headings and Table of Contents |
66 |
| Section 17.07 |
Successors and Assigns |
66 |
| Section 17.08 |
Separability Clause |
66 |
| Section 17.09 |
Benefits of Indenture |
66 |
| Section 17.10 |
Counterparts Originals |
67 |
| Section 17.11 |
Governing Law; Waiver of Trial by Jury |
67 |
| Section 17.12 |
Submission to Jurisdiction |
67 |
| Section 17.13 |
Sanctions Representations. |
67 |
Reconciliation and tie between
Trust Indenture Act of 1939 and Indenture*
| Trust Indenture |
| Act Section |
|
Indenture Section |
| § 310(a) |
|
11.04(a), 17.02 |
| (b) |
|
11.01(f), 11.04(b), 11.05(1), 17.02 |
| (b)(1) |
|
11.04(b), 17.02 |
| § 311 |
|
11.01(f), 17.02 |
| § 312 |
|
14.02(d), 17.02 |
| (b) |
|
11.10, 17.02 |
| (c) |
|
11.10, 17.02 |
| § 313(a) |
|
10.01(a), 17.02 |
| § 314 |
|
17.02 |
| § 315(e) |
|
11.05, 17.02 |
| § 316 |
|
17.02 |
| § 317 |
|
17.02 |
| § 317 |
|
17.02 |
*This reconciliation and tie shall not, for any purpose, be deemed
to be a part of the Indenture.
AMENDED AND RESTATED INDENTURE dated as of February
10, 2023, among Healthpeak OP, LLC, a Maryland limited liability company (the “Issuer”), Healthpeak Properties, Inc., a Maryland
corporation (the “Managing Member” and, in the capacity as guarantor of one or more series of Securities to be issued hereunder
from time to time, the “Guarantor”; the Guarantor, together with the Issuer, the “Obligors”), and The Bank of
New York Mellon Trust Company, N.A., a national banking association, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS, the Issuer (formerly known as HCP, Inc.,
a Maryland corporation) and Trustee entered into the indenture dated November 19, 2012;
WHEREAS, the Guarantor, on its own behalf and on
behalf of the Issuer in its capacity as the Managing Member of the Issuer, has duly authorized the execution and delivery of this Indenture
by itself and the Issuer to provide for the issuance of unsecured debentures, notes, bonds or other evidences of indebtedness (the “Securities”)
in an unlimited aggregate principal amount to be issued from time to time in one or more series as provided in this Indenture;
WHEREAS, the Guarantor has agreed to enter into
this Indenture to provide its Guarantee (as defined herein) of the Issuer’s obligation under the Securities; and
WHEREAS, all things necessary to make this Indenture
a valid and legally binding agreement of the Issuer and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That, in consideration of the premises and the
purchase of the Securities by the Holders thereof and for the equal and proportionate benefit of all of the present and future Holders
of the Securities, each party agrees and covenants as follows:
Article
I
DEFINITIONS
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(a)
the terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(b)
unless otherwise defined in this Indenture or the context otherwise requires, all terms used herein without definition which are
defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(c)
the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other subdivision; and
(d)
references to “Article” or “Section” or other subdivision herein are references to an Article, Section
or other subdivision of this Indenture, unless the context otherwise requires.
Section 1.01
Definitions.
Unless the context otherwise requires, the terms
defined in this Section 1.01 shall for all purposes of this Indenture have the meanings hereinafter set forth:
Affiliate: The term “Affiliate,”
with respect to any specified Person shall mean any other Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect
to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have
meanings correlative to the foregoing.
Authenticating Agent: The term “Authenticating
Agent” shall have the meaning assigned to it in Section 11.09.
Board of Directors: The term “Board
of Directors” shall mean:
(i) for any Person that is a corporation, the board
of directors of the corporation or any committee thereof duly authorized to act on behalf of such board of directors;
(ii) for any Person that is a partnership, the
board of directors of the general partner of the partnership;
(iii) for any Person that is a limited liability
company, the managing member or members thereof (if a natural person or natural persons) or, if such managing member or members are not
natural persons, the board of directors or other controlling committee, as the case may be, of the managing member or members of such
limited liability company duly authorized to act on behalf of such managing member or members; and
(iv) to any other Person, the board or committee
of such Person serving a similar function.
Board Resolution: The term “Board
Resolution” shall mean a copy of a resolution or resolutions certified by the Secretary or an Assistant Secretary of the Managing
Member to have been duly adopted by the Board of Directors (or by a committee of the Board of Directors to the extent that any such other
committee has been authorized by the Board of Directors to establish or approve the matters contemplated) and to be in full force and
effect on the date of such certification and delivered to the Trustee.
Business Day: The term “Business Day,”
when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities, shall
mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in that Place of Payment or
such other location are authorized or obligated by law or executive order to close.
Capital Stock: The term “Capital Stock”
shall mean:
(a)
in the case of a corporation, corporate stock;
(b)
in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however
designated) of corporate stock;
(c)
in the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests;
and
(d)
any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions
of assets of, the issuing Person,
but excluding from all of the foregoing any debt securities convertible
into Capital Stock, whether or not such debt securities include any right of participation with Capital Stock.
Code: The term “Code” shall
mean the Internal Revenue Code of 1986, as amended.
Corporate Trust Office: The term “Corporate
Trust Office,” or other similar term, shall mean the principal office of the Trustee at which at any particular time its corporate
trust business shall be administered, which office at the date hereof is located at 240 Greenwich Street, New York, NY 10286, Attention:
Corporate Trust Unit, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or
the principal corporate trust officer of any successor Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Holders and the Issuer).
Currency: The term “Currency”
shall mean U.S. Dollars or Foreign Currency.
Debt: The term “Debt” shall
mean, as of any date (without duplication), all indebtedness and liabilities for borrowed money, secured or unsecured, of the Issuer and
its Subsidiaries, including mortgages and other notes payable (including any Securities to the extent outstanding from time to time),
but excluding any indebtedness, including mortgages and other notes payable, which is secured by cash, cash equivalents, or marketable
securities or defeased (it being understood that cash collateral shall be deemed to include cash deposited with a trustee with respect
to third party indebtedness), Intercompany Debt and all liabilities associated with customary exceptions to non-recourse indebtedness,
such as for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other
similar exceptions. It is understood that the term “Debt” shall not include any redeemable equity interest in the Issuer.
Default: The term “Default”
shall have the meaning assigned to it in Section 11.03.
Defaulted Interest: The term “Defaulted
Interest” shall have the same meaning assigned to it in Section 3.08(b).
Depositary: The term “Depositary”
shall mean, with respect to the Securities of any series issuable in whole or in part in the form of one or more Global Securities, each
Person designated as Depositary by the Issuer pursuant to Section 3.01 until one or more successor Depositaries shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each Person who
is then a Depositary hereunder, and if at any time there is more than one such Person, “Depositary” as used with respect to
the Securities of any such series shall mean the Depositary with respect to the Securities of that series.
Designated Currency: The term “Designated
Currency” shall have the same meaning assigned to it in Section 3.12.
Discharged: The term “Discharged”
shall have the meaning assigned to it in Section 12.03.
DTC: The term “DTC” shall mean
The Depository Trust Company, Inc. and its successors.
EDGAR: The term “EDGAR” shall
have the meaning assigned to it in Section 10.02.
Electronic Means: The term “Electronic
Means” shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing
applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the
Trustee as available for the use in connection with its services hereunder.
Event of Default: The term “Event
of Default” shall have the meaning specified in Section 7.01.
Exchange Act: The term “Exchange Act”
shall mean the United States Securities Exchange Act of 1934, and the rules and regulations promulgated by the SEC thereunder and any
statute successor thereto, in each case as amended from time to time.
Exchange Rate: The term “Exchange
Rate” shall have the meaning assigned to it in Section 7.01.
Floating Rate Security: The term “Floating
Rate Security” shall mean a Security that provides for the payment of interest at a variable rate determined periodically by reference
to an interest rate index specified pursuant to Section 3.01.
Foreign Currency: The term “Foreign
Currency” shall mean a currency issued by the government of any country other than the United States or a composite currency, the
value of which is determined by reference to the values of the currencies of any group of countries.
GAAP: The term “GAAP” shall
mean generally accepted accounting principles in the United States, consistently applied, as in effect from time to time.
Global Security: The term “Global
Security” shall mean any Security that evidences all or part of a series of Securities, issued in fully-registered certificated
form to the Depositary for such series in accordance with Section 3.03 and bearing the legend prescribed in Section 3.03(g).
Guarantee: The term “Guarantee”
shall mean any guarantee of the Guarantor of the obligations of the Issuer under any Securities.
Guarantor: The term “Guarantor”
shall mean the Person named as the “Guarantor” in the first paragraph of this Indenture until a successor Person shall have
become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor
Person.
Holder; Holder of Securities: The terms
“Holder” and “Holder of Securities” are defined under “Securityholder; Holder of Securities; Holder.”
Indenture: The term
“Indenture” or “this Indenture” shall mean this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture
Act that are deemed to be a part of and govern this instrument and any such supplemental indenture, respectively. The term
“Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 3.01;
provided, however, that if at any time more than one Person is acting as Trustee under this Indenture due to the appointment of one
or more separate Trustees for any one or more separate series of Securities, “Indenture” shall mean, with respect to
such series of Securities for which any such Person is Trustee, this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions
hereof and shall include the terms of particular series of Securities for which such Person is Trustee established as contemplated
by Section 3.01, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such
Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by
means of one or more indentures supplemental hereto executed and delivered after such person had become such Trustee, but to which
such person, as such Trustee, was not a party; provided, further that in the event that this Indenture is supplemented or amended by
one or more indentures supplemental hereto which are only applicable to certain series of Securities, the term
“Indenture” for a particular series of Securities shall only include the supplemental indentures applicable thereto.
Individual Securities: The term “Individual
Securities” shall mean the individual Securities in definitive form registered in the name or names of Persons other than a Depositary
for Global Securities or a nominee or nominees thereof.
Instructions: The term “Instructions”
shall have the meaning assigned to it in Section 17.03.
Intercompany Debt: The term “Intercompany
Debt” means, as of any date, Debt to which the only parties are the Issuer and any of its Subsidiaries as of such date; provided,
however, that with respect to any such Debt of which the Issuer is the borrower, such Debt is subordinate in right of payment to the Securities.
Interest: The term “interest”
shall mean, unless the context otherwise requires, interest payable on any Securities, and with respect to an Original Issue Discount
Security that by its terms bears interest only after Maturity, interest payable after Maturity.
Interest Payment Date: The term “Interest
Payment Date” shall mean, with respect to any Security, the Stated Maturity of an installment of interest on such Security.
Issuer: The term “Issuer” shall
mean the Person named as the “Issuer” in the first paragraph of this Indenture until a successor Person shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor Person.
Issuer Order: The term “Issuer Order”
shall mean a written order signed in the name of the Issuer by the Guarantor by any of the Chairman of the Board of Directors, the Chief
Executive Officer, the President, the Chief Financial Officer, the General Counsel, any Vice President, the Treasurer, any Assistant Treasurer,
the Controller, any Assistant Controller, the Corporate Secretary or any Assistant Corporate Secretary of the Guarantor and delivered
to the Trustee.
Lien: The term “Lien” shall
mean (without duplication) any lien, mortgage, trust deed, deed of trust, deed to secure debt, pledge, security interest, assignment for
collateral purposes, deposit arrangement, or other security agreement, excluding any right of setoff but including, without limitation,
any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the
foregoing, and any other like agreement granting or conveying a security interest; provided, that, for purposes hereof, the term
“Lien” shall not include any mortgage that has been defeased by the Issuer or any of its Subsidiaries in accordance with the
provisions thereof through the deposit of cash, cash equivalents or marketable securities (it being understood that cash collateral shall
be deemed to include cash deposited with a trustee with respect to third party indebtedness).
Managing Member. The term “Managing
Member” means the Person named as the “Managing Member” in the first paragraph of this Indenture until a successor Person
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Managing Member” shall mean
such successor Person or Persons.
Mandatory Sinking Fund Payment: The term
“Mandatory Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).
Maturity: The term “Maturity,”
with respect to any Security, shall mean the date on which the principal of such Security shall become due and payable as therein and
herein provided, whether at the Stated Maturity thereof, upon acceleration, call for redemption or otherwise.
Members: The term “Members”
shall have the meaning assigned to it in Section 3.03(i).
Obligors: The term “Obligors”
shall mean the Person or Persons named as the “Obligors” in the first paragraph of this Indenture until a successor Person
or Persons shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Obligors” shall
mean such successor Person or Persons.
Officer’s Certificate: The term “Officer’s
Certificate” shall mean, when used with respect to any Person, a certificate signed in the name of such Person by any of the Chairman
of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, the General Counsel, any Vice President,
the Treasurer, any Assistant Treasurer, the Controller, any Assistant Controller, the Corporate Secretary or any Assistant Corporate Secretary
of such Person or, if such Person is a limited liability company, then by the Chairman of the Board or President or any Vice President
and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary of the managing member of such Person and, in
either case, delivered to the Trustee. Each such certificate shall include the statements provided for in Section 17.01 if and to the
extent required by the provisions of such Section.
Opinion of Counsel: The term “Opinion
of Counsel” shall mean an opinion in writing reasonably acceptable to the Trustee signed by one or more legal counsel, who may be
an employee of or of counsel to the Issuer, or the Managing Member, or, as applicable or as the context may require, the Guarantor, and
that meets the requirements provided for in Section 17.01.
Optional Sinking Fund Payment: The term
“Optional Sinking Fund Payment” shall have the meaning assigned to it in Section 5.01(b).
Original Issue Discount Security: The term
“Original Issue Discount Security” shall mean any Security that is issued with “original issue discount” within
the meaning of Section 1273(a) of the Code and the regulations thereunder, or any successor provision, and any other Security designated
by the Issuer as issued with original issue discount for United States federal income tax purposes.
Outstanding: The term “Outstanding,”
when used with respect to Securities means, as of the date of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(a)
Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities
or portions thereof for which payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as its
own Paying Agent) for the Holders of such Securities or Securities as to which the Obligors’ obligations have been Discharged;
provided, however, that if such Securities or portions thereof are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and
(c)
Securities that have been paid pursuant to Section 3.07(b) or in exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to a Responsible
Officer of the Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands such Securities
are valid obligations of the Issuer; provided, however, that in determining whether the Holders of the requisite principal amount of Securities
of a series Outstanding have performed any action hereunder, Securities owned by the Issuer or any other obligor upon the Securities of
such series or any Affiliate of the Issuer or of such other obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any such action, only Securities of such series that a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to act with respect
to such Securities and that the pledgee is not the Issuer or any other obligor upon such Securities or any Affiliate of the Issuer or
of such other obligor. In determining whether the Holders of the requisite principal amount of Outstanding Securities of a series have
performed any action hereunder, the principal amount of an Original Issue Discount Security that shall be deemed to be Outstanding for
such purpose shall be the amount of the principal thereof that would be due and payable as of the date of such determination upon acceleration
of the Maturity thereof pursuant to Section 7.02 and the principal amount of a Security denominated in a Foreign Currency that shall be
deemed to be Outstanding for such purpose shall be the amount calculated pursuant to Section 3.11(b).
Paying Agent: The term “Paying Agent”
shall have the meaning assigned to it in Section 6.02(a).
Person: The term “Person” shall
mean any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
Place of Payment: The term “Place
of Payment” shall mean, when used with respect to the Securities of any series, the place or places where the principal of and premium,
if any, and interest on the Securities of that series are payable as specified pursuant to Section 3.01.
Predecessor Security: The term “Predecessor
Security” shall mean, with respect to any Security, every previous Security evidencing all or a portion of the same Debt as that
evidenced by such particular Security, and, for the purposes of this definition, any Security authenticated and delivered under Section
3.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same Debt as the lost, destroyed or stolen Security.
Record Date: The term “Record Date”
shall mean, with respect to any interest payable on any Security on any Interest Payment Date, any date specified in or pursuant to this
Indenture or such Security as the record date for the payment of interest pursuant to Section 3.01.
Redemption Date: The term “Redemption
Date” shall mean, when used with respect to any Security to be redeemed, in whole or in part, the date fixed for such redemption
by or pursuant to this Indenture and the terms of such Security, which, in the case of a Floating Rate Security, unless otherwise specified
pursuant to Section 3.01, shall be an Interest Payment Date only.
Redemption Price: The term “Redemption
Price,” when used with respect to any Security to be redeemed, in whole or in part, shall mean the price at which it is to be redeemed
pursuant to the terms of the applicable Security and this Indenture.
Register: The term “Register”
shall have the meaning assigned to it in Section 3.05(a).
Registrar: The term “Registrar”
shall have the meaning assigned to it in Section 3.05(a).
Responsible Officers: The term “Responsible
Officers” of the Trustee hereunder shall mean any vice president, assistant secretary, senior associate, associate, trust officer
or any other officer associated with the corporate trust department of the Trustee customarily performing functions similar to those performed
by any of the above designated officers, and also means, with respect to a particular corporate trust matter, any other officer of the
Trustee to whom such matter is referred because of such person’s knowledge of and familiarity with the particular subject and who
shall have direct responsibility for the administration of this Indenture.
SEC: The term “SEC” shall mean
the United States Securities and Exchange Commission, as constituted from time to time.
Security: The term “Security”
or “Securities” shall have the meaning stated in the recitals and shall more particularly mean one or more of the Securities
duly authenticated by the Trustee and delivered pursuant to the provisions of this Indenture.
Security Custodian: The term “Security
Custodian” shall mean the custodian with respect to any Global Security appointed by the Depositary, or any successor Person thereto,
and shall initially be the Trustee.
Securityholder; Holder of Securities; Holder:
The term “Securityholder” or “Holder of Securities” or “Holder,” shall mean the Person in whose name
Securities shall be registered in the Register kept for that purpose hereunder.
Senior Debt: The term “Senior Debt”
means the principal of (and premium, if any) and unpaid interest on (x) Debt of the Issuer, whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, for money borrowed other than (a) any Debt of the Issuer which when incurred, and
without respect to any election under Section 1111(b) of the Federal Bankruptcy Code, was without recourse to the Issuer, (b) any Debt
of the Issuer to any of its Subsidiaries, (c) Debt to any employee of the Issuer, (d) any liability for taxes, (e) Trade Payables and
(f) any Debt of the Issuer which is expressly subordinate in right of payment to any other Debt of the Issuer, and (y) renewals, extensions,
modifications and refundings of any such Debt. For purposes of the foregoing and the definition of “Senior Debt,” the phrase
“subordinated in right of payment” means debt subordination only and not lien subordination, and accordingly, (i) unsecured
indebtedness shall not be deemed to be subordinated in right of payment to secured indebtedness merely by virtue of the fact that it is
unsecured, and (ii) junior liens, second liens and other contractual arrangements that provide for priorities among Holders of the same
or different issues of indebtedness with respect to any collateral or the proceeds of collateral shall not constitute subordination in
right of payment. This definition may be modified or superseded by a supplemental indenture.
Special Record Date: The term “Special
Record Date” shall have the meaning assigned to it in Section 3.08(b)(i).
Stated Maturity: The term “Stated
Maturity” when used with respect to any Security or any installment of interest thereon, shall mean the date specified in such Security
or pursuant to Section 3.01 hereof with respect to such Security as the fixed date on which the principal (or any portion thereof) of
or premium, if any, on such Security or such installment of interest is due and payable.
Subsidiary: The term “Subsidiary”
shall mean, with respect to any Person, a corporation, partnership association, joint venture, trust, limited liability company or other
business entity which is required to be consolidated with such Person in accordance with GAAP.
Successor Company: The term “Successor
Company” shall have the meaning assigned to it in Section 3.06(i).
Trade Payables: The term “Trade Payables”
means accounts payable or any other Debt or monetary obligations to trade creditors created or assumed by the Issuer or any Subsidiary
of the Issuer in the ordinary course of business (including guarantees thereof or instruments evidencing such liabilities).
Trust Indenture Act; TIA: The term “Trust
Indenture Act” or “TIA” shall mean the Trust Indenture Act of 1939, as amended, and the rules and regulations thereunder
as in effect on the date of this Indenture, except as provided in Section 14.06 and except to the extent any amendment to the Trust Indenture
Act expressly provides for application of the Trust Indenture Act as in effect on another date.
Trustee: The term “Trustee”
shall mean the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have
become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee”
shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee”
as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
U.S. Dollars: The term “U.S. Dollars”
shall mean such currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts.
U.S. Government Obligations: The term “U.S.
Government Obligations” shall have the meaning assigned to it in Section 12.03.
United States: The term “United States”
shall mean the United States of America (including the States and the District of Columbia), its territories and its possessions and other
areas subject to its jurisdiction.
Article
II
FORMS OF SECURITIES
Section 2.01
Terms of the Securities.
(a) The
Securities of each series and the related Guarantees, if any, shall be substantially in the form set forth in an Officer’s
Certificate or in one or more indentures supplemental hereto, and shall have such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon as the Issuer may deem appropriate and as are not
inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any securities exchange on which any series of the Securities may be listed or of
any automated quotation system on which any such series may be quoted, or to conform to usage, all as determined by any of the
officers executing such Securities as conclusively evidenced by their execution of such Securities.
(b)
The terms and provisions of the Securities shall constitute, and are hereby expressly made, a part of this Indenture, and, to the
extent applicable, the Issuer and the Trustee, by their execution and delivery of this Indenture expressly agree to such terms and provisions
and to be bound thereby.
Section 2.02
Form of Trustee’s Certificate of Authentication.
(a)
Only such of the Securities as shall bear thereon a certificate substantially in the form of the Trustee’s certificate of
authentication hereinafter recited, executed by the Trustee by manual, facsimile or electronic signature, shall be valid or become obligatory
for any purpose or entitle the Holder thereof to any right or benefit under this Indenture.
(b)
Each Security shall be dated the date of its authentication, except that any Global Security shall be dated as of the date specified
as contemplated in Section 3.01(q).
(c)
The form of the Trustee’s certificate of authentication to be borne by the Securities shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Date of
authentication: ___________________
| |
The Bank of New York Mellon Trust Company, N.A., as Trustee |
| |
|
| |
By: |
|
| |
|
Authorized Signatory |
Section 2.03
Form of Trustee’s Certificate of Authentication by an Authenticating Agent. If at any time there shall be an Authenticating
Agent appointed with respect to any series of Securities, then the Trustee’s Certificate of Authentication by such Authenticating
Agent to be borne by Securities of each such series shall be substantially as follows:
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
Date of
authentication:_____________________
| |
The Bank of New York Mellon Trust Company, N.A., as Trustee |
| By: | [NAME OF AUTHENTICATING AGENT]
as Authenticating Agent |
Article
III
THE DEBT SECURITIES
Section 3.01
Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered
under this Indenture is unlimited. The Securities may be issued in one or more series. The title and terms of each series of Securities
shall be as set forth in or determined pursuant to an Officer’s Certificate or in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series, which shall set forth such of the following as are applicable to the Securities of such series:
(a)
the title of the Securities of the series (which shall distinguish the Securities of such series from the Securities of all other
series, except to the extent that additional Securities of an existing series are being issued);
(b)
any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon transfer of, or in exchange for, or in lieu of, other Securities of
such series pursuant to Section 3.04, 3.06, 3.07, 4.06, or 14.05);
(c)
the dates on which or periods during which the Securities of the series may be issued, and the dates on, or the range of dates
within, which the principal of and premium, if any, on the Securities of such series are or may be payable or the method by which such
date or dates shall be determined or extended;
(d)
the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates
shall be determined, whether such interest shall be payable in cash or additional Securities of the same series or shall accrue and increase
the aggregate principal amount outstanding of such series (including if such Securities were originally issued at a discount), the date
or dates from which such interest shall accrue, or the method by which such date or dates shall be determined, the Interest Payment Dates
on which any such interest shall be payable, and the Record Dates for the determination of Holders to whom interest is payable on such
Interest Payment Dates or the method by which such date or dates shall be determined, the right, if any, to extend or defer interest payments
and the duration of such extension or deferral;
(e)
if other than U.S. Dollars, the Foreign Currency in which Securities of the series shall be denominated or in which payment of
the principal of, premium, if any, or interest on the Securities of the series shall be payable and any other terms concerning such payment;
(f) if
the amount of payment of principal of, premium, if any, or interest on the Securities of the series may be determined with reference
to an index, formula or other method including, but not limited to, an index based on a Currency or Currencies other than that in
which the Securities are stated to be payable, the manner in which such amounts shall be determined;
(g)
if the principal of, premium, if any, or interest on Securities of the series are to be payable, at the election of the Issuer
or a Holder thereof, in a Currency other than that in which the Securities are denominated or stated to be payable without such election,
the period or periods within which, and the terms and conditions upon which, such election may be made and the time and the manner of
determining the exchange rate between the Currency in which the Securities are denominated or payable without such election and the Currency
in which the Securities are to be paid if such election is made;
(h)
the place or places, if any, in addition to or instead of the Corporate Trust Office of the Trustee where the principal of, premium,
if any, and interest on Securities of the series shall be payable, and where Securities of any series may be presented for registration
of transfer, exchange or conversion, and the place or places where notices and demands to or upon the Issuer in respect of the Securities
of such series may be made;
(i)
the price or prices at which, the period or periods within which or the date or dates on which, and the terms and conditions upon
which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer, if the Issuer is to have that option;
(j)
the obligation or right, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any sinking fund,
amortization or analogous provisions or at the option of a Holder thereof and the price or prices at which, the period or periods within
which or the date or dates on which, the Currency or Currencies in which and the terms and conditions upon which Securities of the series
shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(k)
if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which Securities
of the series shall be issuable;
(l)
if other than the principal amount thereof, the portion of the principal amount of the Securities of the series which shall be
payable upon acceleration of the Maturity thereof pursuant to Section 7.02 (to the extent not otherwise specified in such section);
(m)
the guarantors, if any, of the Securities of the series, and the extent of the guarantees (including provisions relating to seniority,
subordination, and the release of the guarantors), if any, and any additions or changes to permit or facilitate guarantees of such Securities;
(n)
whether the Securities of the series are to be issued as Original Issue Discount Securities and the amount of discount with which
such Securities may be issued;
(o)
if the provisions of Article XII hereof shall not be applicable with respect to the Securities of such series; or any addition
to or change in the provisions of Article XII and, if the Securities of any series are payable in a Currency other than U.S. Dollars,
the Currency or the nature of the government obligations to be deposited with the Trustee pursuant to Section 12.08;
(p)
whether the Securities of the series are to be issued in whole or in part in the form of one or more Global Securities and, in
such case, the Depositary for such Global Security or Global Securities;
(q)
the date as of which any Global Security of the series shall be dated if other than the original issuance of the first Security
of the series to be issued;
(r)
if the Securities of the series are to be convertible into or exchangeable for any securities or property of any Person (including
the Issuer), the terms and conditions upon which such Securities will be so convertible or exchangeable, and any additions or changes,
if any, to permit or facilitate such conversion or exchange;
(s)
whether the Securities of such series are subject to subordination and the terms of such subordination (for purposes of clarity,
it is hereby understood and agreed that, unless the Securities of such series are expressly stated to be subject to subordination, Article
XV shall not be applicable with respect to the Securities of such series);
(t)
whether the Securities of such series are to be secured and the terms of such security;
(u)
any restriction or condition on the transferability of the Securities of such series;
(v)
any addition or change in the provisions related to compensation and reimbursement of the Trustee which applies to Securities of
such series;
(w)
any addition or change in the provisions related to supplemental indentures set forth in Sections 14.01, 14.02 and 14.04 which
applies to Securities of such series;
(x)
provisions, if any, granting special rights to Holders upon the occurrence of specified events;
(y)
any addition to or change in the Events of Default which applies to any Securities of the series and any change in the right of
the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 7.02
and any addition or change in the provisions set forth in Article VII which applies to Securities of the series;
(z)
any addition to or change in the covenants set forth in Article VI which applies to Securities of the series; and
(aa)
any other terms of the Securities of such series (which terms shall not be inconsistent with the provisions of the TIA, but may
modify, amend, supplement or delete any of the terms of this Indenture with respect to such series).
(bb)
All Securities of any one series shall be substantially identical, except as to denomination and except as may otherwise be provided
herein or set forth in an Officer’s Certificate or in one or more indentures supplemental hereto. Unless otherwise specified with
respect to the Securities of any series pursuant to this Section 3.01, the Issuer may, at its option, at any time and from time to time,
re-open any series of Securities previously issued under this Indenture and issue additional Securities of such series, all of which together
shall constitute a single series of Securities under this Indenture; provided that, unless otherwise specified pursuant to this Section
3.01 with respect to a series of Securities, no additional Securities of any series may be issued if an Event of Default has occurred
and is continuing with respect to such series. Any such re-opening and the terms thereof (including, without limitation, the principal
amount of the additional Securities of such series to be so issued) shall be set forth in an Officer’s Certificate or one or more
indentures supplemental hereto delivered to the Trustee prior to the issuance of any such additional Securities of such series.
Section 3.02
Denominations. In the absence of any specification pursuant to Section 3.01 with respect to Securities of any series, the
Securities of such series shall be issuable only as Securities in denominations of $2,000 and any integral multiple of $1,000 in excess
thereof, and shall be payable only in U.S. Dollars.
Section 3.03
Execution, Authentication, Delivery and Dating.
(a)
The Securities shall be executed in the name and on behalf of the Issuer by the manual, facsimile or electronic signature of the
Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Financial Officer, the General Counsel, any
Vice Presidents or Treasurer of the Managing Member. The related Guarantees, if any, shall be executed on behalf of the Guarantor by the
manual, facsimile or electronic signature of its Chairman of the Board of Directors, its Chief Executive Officer, its President, its Chief
Financial Officer, its General Counsel, any of its Vice Presidents or its Treasurer. If the Person whose signature is on a Security or
Guarantee no longer holds that office at the time the Security or Guarantee, as applicable, is authenticated and delivered, the Security
or Guarantee, as applicable, shall nevertheless be valid.
(b)
At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any
series, together with any Guarantees appertaining thereto, executed by the Issuer to the Trustee for authentication, together with an
Issuer Order for the authentication and delivery of such Securities and, if required pursuant to Section 3.01, a supplemental indenture
or Officer’s Certificate setting forth the terms of the Securities of a series. The Trustee shall thereupon authenticate and deliver
such Securities without any further action by the Issuer. The Issuer Order shall specify the amount of Securities to be authenticated
and the date on which the original issue of Securities is to be authenticated.
(c)
In authenticating the first Securities of any series and accepting the additional responsibilities under this Indenture in relation
to such Securities the Trustee shall receive, and (subject to Section 11.02) shall be fully protected in relying upon an Officer’s
Certificate and an Opinion of Counsel, each prepared in accordance with Section 17.01 stating that the conditions precedent, if any, provided
for in the Indenture have been complied with. The Opinion of Counsel shall also state that the Securities and the related Guarantees,
if any, have been duly authorized by all necessary corporate action on the part of the Issuer and the Guarantor, as applicable, duly executed
and delivered to the extent such execution and delivery are governed by the laws of the State of New York and are valid and binding obligations
of the Issuer and, if applicable, the Guarantor, enforceable against the Issuer and the Guarantor, as applicable, in accordance with their
terms under the laws of the State of New York. The Opinion of Counsel shall further state that the form and terms of the Securities and
the related Guarantees, if any, have been established in conformity with this Indenture.
(d)
The Trustee shall have the right to decline to authenticate and deliver the Securities under this Section 3.03 if the issue of
the Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
(e)
Each Security and related Guarantee, if any, shall be dated the date of its authentication, except as otherwise provided pursuant
to Section 3.01 with respect to the Securities of such series.
(f) If
the Issuer shall establish pursuant to Section 3.01 that the Securities of a series are to be issued in whole or in part in the form
of one or more Global Securities, then the Issuer shall execute and the Trustee shall authenticate and deliver one or more Global
Securities that (i) shall represent an aggregate amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Global Securities, (ii) shall be registered, if in registered form, in the name of the
Depositary for such Global Security or Global Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee
to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially to the following
effect:
“THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF
THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED
BY THE ISSUER, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF [THE DEPOSITARY] TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF [THE NOMINEE OF THE DEPOSITARY] OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF [THE DEPOSITARY]
(AND ANY PAYMENT HEREON IS MADE TO [THE NOMINEE OF THE DEPOSITARY] OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF [THE DEPOSITARY]), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, [THE NOMINEE OF THE DEPOSITARY], HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.”
The aggregate principal amount of each Global Security
may from time to time be increased or decreased by adjustments made on the records of the Security Custodian, as provided in this Indenture.
(g)
Each Depositary designated pursuant to Section 3.01 for a Global Security in registered form must, at the time of its designation
and at all times while it serves as such Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute
or regulation.
(h)
Members of, or participants in, the Depositary (“Members”) shall have no rights under this Indenture with respect to
any Global Security held on their behalf by the Depositary or by the Security Custodian under such Global Security, and the Depositary
may be treated by the Issuer, the Trustee, the Paying Agent and the Registrar and any of their agents as the absolute owner of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Trustee, the Paying
Agent or the Registrar or any of their agents from giving effect to any written certification, proxy or other authorization furnished
by the Depositary or impair, as between the Depositary and its Members, the operation of customary practices of the Depositary governing
the exercise of the rights of an owner of a beneficial interest in any Global Security. The Holder of a Global Security may grant proxies
and otherwise authorize any Person, including Members and Persons that may hold interests through Members, to take any action that a Holder
is entitled to take under this Indenture or the Securities.
(i)
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears
on such Security a certificate of authentication substantially in one of the forms provided for herein duly executed by the Trustee or
by an Authenticating Agent by manual, facsimile or electronic signature of an authorized signatory of the Trustee or such Authenticating
Agent, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder and is entitled to the benefits of this Indenture.
Section 3.04
Temporary Securities.
(a)
Pending the preparation of definitive Securities of any series, the Issuer may execute, and upon Issuer Order the Trustee shall
authenticate and deliver, temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise reproduced, in any
authorized denominations, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form
and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine,
as conclusively evidenced by their execution of such Securities. Any such temporary Security may be in the form of one or more Global
Securities, representing all or a portion of the Outstanding Securities of such series. Every such temporary Security shall be executed
by the Issuer and shall be authenticated and delivered by the Trustee upon the same conditions and in substantially the same manner, and
with the same effect, as the definitive Security or Securities in lieu of which it is issued.
(b)
If temporary Securities of any series are issued, the Issuer will cause definitive Securities of such series to be prepared without
unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable
for definitive Securities of such series upon surrender of such temporary Securities at the office or agency of the Issuer in a Place
of Payment for such series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any
series, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive
Securities of the same series of authorized denominations and of like tenor. Until so exchanged, the temporary Securities of any series
shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
(c)
Upon any exchange of a portion of a temporary Global Security for a definitive Global Security or for the Individual Securities
represented thereby pursuant to this Section 3.04 or Section 3.06, the temporary Global Security shall be endorsed by the Trustee to reflect
the reduction of the principal amount evidenced thereby, whereupon the principal amount of such temporary Global Security shall be reduced
for all purposes by the amount so exchanged and endorsed.
Section 3.05
Registrar and Paying Agent.
(a)
The Issuer will keep, at an office or agency to be maintained by it in a Place of Payment where Securities may be presented for
registration or presented and surrendered for registration of transfer or of exchange, and where Securities of any series that are convertible
or exchangeable may be surrendered for conversion or exchange, as applicable (the “Registrar”), a security register for the
registration and the registration of transfer or of exchange of the Securities (the registers maintained in such office and in any other
office or agency of the Issuer in a Place of Payment being herein sometimes collectively referred to as the “Register”), as
in this Indenture provided, which Register shall at all reasonable times be open for inspection by the Trustee. Such Register shall be
in written form or in any other form capable of being converted into written form within a reasonable time. The Issuer may have one or
more co-Registrars; the term “Registrar” includes any co-registrar.
(b)
The Issuer shall enter into an appropriate agency agreement with any Registrar or co-Registrar not a party to this Indenture.
The agreement shall implement the provisions of this Indenture that relate to such agent. The Issuer shall notify the Trustee of the name
and address of each such agent. If the Issuer fails to maintain a Registrar for any series, the Trustee shall act as such and shall be
entitled to appropriate compensation therefor pursuant to Section 11.01. The Issuer or any Affiliate thereof may act as Registrar, co-Registrar
or transfer agent.
(c)
The Issuer hereby appoints the Trustee at its Corporate Trust Office as Registrar in connection with the Securities and this Indenture,
until such time as another Person is appointed as such.
Section 3.06
Transfer and Exchange.
(a)
Transfer.
(i)
Upon surrender for registration of transfer of any Security of any series at the Registrar the Issuer shall execute, and the Trustee
or any Authenticating Agent shall authenticate and deliver, in the name of the designated transferee, one or more new Securities of the
same series for like aggregate principal amount of any authorized denomination or denominations. The transfer of any Security shall not
be valid as against the Issuer or the Trustee unless registered at the Registrar at the request of the Holder, or at the request of his,
her or its attorney duly authorized in writing.
(ii)
Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for the Individual Securities
represented thereby, a Global Security representing all or a portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary or by such Depositary or any such nominee to a successor Depositary for such series or a nominee of such successor
Depositary.
(b)
Exchange.
(i)
At the option of the Holder, Securities of any series (other than a Global Security, except as set forth below) may be exchanged
for other Securities of the same series for like aggregate principal amount of any authorized denomination or denominations, upon surrender
of the Securities to be exchanged at the Registrar.
(ii)
Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee or an Authenticating Agent shall
authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive.
(c)
Exchange of Global Securities for Individual Securities. Except as provided below, owners of beneficial interests in Global Securities
will not be entitled to receive Individual Securities.
(i) Individual
Securities shall be issued to all owners of beneficial interests in a Global Security in exchange for such interests if: (A) at any
time the Depositary for the Securities of a series provides reasonable notice to the Issuer that it is unwilling or unable to
continue as Depositary for the Securities of such series or if at any time the Depositary for the Securities of such series shall no
longer be eligible under Section 3.03(h) and, in each case, a successor Depositary is not appointed by the Issuer within 90 days of
such notice or of the Issuer becoming aware of such ineligibility, as the case may be, or (B) the Issuer executes and delivers to
the Trustee and the Registrar an Officer’s Certificate stating that such Global Security shall be so exchangeable. In
connection with the exchange of an entire Global Security for Individual Securities pursuant to this subsection (c), such Global
Security shall be deemed to be surrendered to the Trustee for cancellation, and the Issuer shall execute, and the Trustee, upon
receipt of an Issuer Order for the authentication and delivery of Individual Securities of such series, will authenticate and
deliver to each beneficial owner identified by the Depositary in exchange for its beneficial interest in such Global Security, an
equal aggregate principal amount of Individual Securities of authorized denominations.
(ii)
The owner of a beneficial interest in a Global Security will be entitled to receive an Individual Security in exchange for such
interest if an Event of Default has occurred and is continuing. Upon receipt by the Security Custodian and Registrar of instructions from
the Holder of a Global Security directing the Security Custodian and Registrar to (x) issue one or more Individual Securities in the amounts
specified to the owner of a beneficial interest in such Global Security and (y) debit or cause to be debited an equivalent amount of beneficial
interest in such Global Security, subject to the rules and regulations of the Depositary:
(A)
the Security Custodian and Registrar shall notify the Issuer and the Trustee of such instructions, identifying the owner and amount
of such beneficial interest in such Global Security;
(B)
the Issuer shall promptly execute and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of Individual
Securities of such series, shall authenticate and deliver to such beneficial owner Individual Securities in an equivalent amount to such
beneficial interest in such Global Security; and
(C)
the Security Custodian and Registrar shall decrease such Global Security by such amount in accordance with the foregoing. In the
event that the Individual Securities are not issued to each such beneficial owner promptly after the Registrar has received a request
from the Holder of a Global Security to issue such Individual Securities, the Issuer expressly acknowledges, with respect to the right
of any Holder to pursue a remedy pursuant to Section 7.07 hereof, the right of any beneficial Holder of Securities to pursue such remedy
with respect to the portion of the Global Security that represents such beneficial Holder’s Securities as if such Individual Securities
had been issued.
(iii)
If specified by the Issuer pursuant to Section 3.01 with respect to a series of Securities, the Depositary for such series of Securities
may surrender a Global Security for such series of Securities in exchange in whole or in part for Individual Securities of such series
on such terms as are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall execute, and the Trustee shall authenticate
and deliver, without service charge,
(A)
to each Person specified by such Depositary a new Individual Security or new Individual Securities of the same series, of any authorized
denomination as requested by such Person in aggregate principal amount equal to and in exchange for such Person’s beneficial interest
in the Global Security; and
(B)
to such Depositary a new Global Security in a denomination equal to the difference, if any, between the principal amount of the
surrendered Global Security and the aggregate principal amount of Individual Securities delivered to Holders thereof.
(iv)
In any exchange provided for in clauses (i) through (iii), the Issuer will execute and the Trustee will authenticate and deliver
Individual Securities in registered form in authorized denominations.
(v)
Upon the exchange in full of a Global Security for Individual Securities, such Global Security shall be canceled by the Trustee.
Individual Securities issued in exchange for a Global Security pursuant to this Section shall be registered in such names and in such
authorized denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants
or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the Persons in whose names such Securities are
so registered.
(d)
All Securities issued upon any registration of transfer or exchange of Securities shall be valid obligations of the Issuer evidencing
the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered for such registration of transfer
or exchange.
(e)
Every Security presented or surrendered for registration of transfer, or for exchange or payment shall (if so required by the Issuer,
the Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory
to the Issuer, the Trustee and the Registrar, duly executed by the Holder thereof or by his, her or its attorney duly authorized in writing.
(f)
No service charge will be made for any registration of transfer or exchange of Securities. The Issuer or the Trustee may require
payment of a sum sufficient to cover any tax, assessment or other governmental charge that may be imposed in connection with any registration
of transfer or exchange of Securities, other than those expressly provided in this Indenture to be made at the Issuer’s own expense
or without expense or charge to the Holders and other than those made pursuant to Sections 3.04, 4.06 or 14.05 hereof.
(g)
The Issuer shall not be required to (i) register, transfer or exchange Securities of any series during a period beginning at the
opening of business 15 days before the day of the transmission of a notice of redemption of Securities of such series selected for redemption
under Section 4.03 and ending at the close of business on the day of such transmission, or (ii) register, transfer or exchange any Security
so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part.
(h)
In case a successor Issuer (“Successor Company”) has executed an indenture supplemental hereto with the Trustee pursuant
to Section 6.04, any of the Securities theretofore authenticated or delivered may, from time to time, at the request of the Successor
Company, be exchanged for other Securities executed in the name of the Successor Company with such changes in phraseology and form as
may be appropriate, but otherwise identical to the Securities surrendered for such exchange and of like principal amount; and the Trustee,
upon Issuer Order of the Successor Company, shall authenticate and deliver Securities as specified in such order for the purpose of such
exchange. If Securities shall at any time be authenticated and delivered in any new name of a Successor Company pursuant to this Section
3.06 in exchange or substitution for or upon registration of transfer of any Securities, such Successor Company, at the option of the
Holders but without expense to them, shall provide for the exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
(i)
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer
imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security other than to require
delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required
by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements
hereof.
(j)
Neither the Trustee nor any agent of the Trustee shall have any responsibility for any actions taken or not taken by the Depositary.
Section 3.07
Mutilated, Destroyed, Lost and Stolen Securities.
(a)
If (i) any mutilated Security or a Security with a mutilated Guarantee is surrendered to the Trustee at its Corporate Trust Office
or (ii) the Issuer and the Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Security or Guarantee,
and there is delivered to the Issuer and the Trustee security or indemnity satisfactory to them to save each of them and any Paying Agent
harmless, and neither the Issuer nor the Trustee receives notice that such Security or Guarantee has been acquired by a protected purchaser,
then the Issuer shall execute and upon Issuer Order the Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Security or Guarantee, a new Security of the same series and of like tenor, form, terms and principal
amount, bearing a number not contemporaneously outstanding, with Guarantees corresponding to the Guarantees, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen Guarantee appertains, such that neither
gain nor loss in interest shall result from such exchange or substitution.
(b)
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer in
its discretion may, instead of issuing a new Security, pay the amount due on such Security in accordance with its terms.
(c)
Upon the issuance of any new Security under this Section, the Issuer may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in respect thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
(d)
Every new Security of any series issued pursuant to this Section shall constitute an original additional contractual obligation
of the Issuer, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
(e)
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities or Guarantees.
Section 3.08
Payment of Interest; Interest Rights Preserved.
(a) Interest
on any Security that is payable and is punctually paid or duly provided for on any Interest Payment Date shall be paid to the Person
in whose name such Security (or one or more Predecessor Securities) is registered at the close of business on the Record Date for
such interest notwithstanding the cancellation of such Security upon any transfer or exchange subsequent to the Record Date. Payment
of interest on Securities shall be made at the Corporate Trust Office (except as otherwise specified pursuant to Section 3.01) or,
at the option of the Issuer, by check mailed to the address of the Person entitled thereto as such address shall appear in the
Register or, in accordance with arrangements satisfactory to the Trustee, by wire transfer to an account designated by the
Holder.
(b)
Any interest on any Security that is payable but is not punctually paid or duly provided for on any Interest Payment Date (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Record Date by virtue of his,
her or its having been such a Holder, and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided
in clause (i) or (ii) below:
(i)
The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names such Securities (or their respective
Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest (a
“Special Record Date”), which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the
Issuer shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 calendar days and
not less than 10 calendar days prior to the date of the proposed payment and not less than 10 calendar days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at
the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor
to be mailed, first-class postage prepaid, to the Holders of such Securities at their addresses as they appear in the Register, not less
than 10 calendar days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names such Securities (or
their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable
pursuant to the following clause (ii).
(ii)
The Issuer may make payment of any Defaulted Interest on Securities in any other lawful manner not inconsistent with the requirements
of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after
notice given by the Issuer to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable
by the Trustee.
(c)
Subject to the provisions set forth herein relating to Record Dates, each Security delivered pursuant to any provision of this
Indenture in exchange or substitution for, or upon registration of transfer of, any other Security shall carry all the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.09 Cancellation.
Unless otherwise specified pursuant to Section 3.01 for Securities of any series, all Securities surrendered for payment,
redemption, registration of transfer or exchange or credit against any sinking fund or otherwise shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee for cancellation and shall be promptly canceled by it and, if surrendered to the
Trustee, shall be promptly canceled by it. The Issuer may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder that the Issuer may have acquired in any manner whatsoever, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted by this Indenture. The Trustee shall dispose of all
canceled Securities held by it in accordance with its then customary procedures and deliver a certificate of such disposal to the
Issuer upon its request therefor. The acquisition of any Securities by the Issuer shall not operate as a redemption or satisfaction
of the Debt represented thereby unless and until such Securities are surrendered to the Trustee for cancellation.
Section 3.10
Computation of Interest. Except as otherwise specified pursuant to Section 3.01 for Securities of any series, interest on
the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 3.11
Currency of Payments in Respect of Securities.
(a)
Except as otherwise specified pursuant to Section 3.01 for Securities of any series, payment of the principal of and premium, if
any, and interest on Securities of such series will be made in U.S. Dollars.
(b)
For purposes of any provision of the Indenture where the Holders of Outstanding Securities may perform an action that requires
that a specified percentage of the Outstanding Securities of all series perform such action and for purposes of any decision or determination
by the Trustee of amounts due and unpaid for the principal of and premium, if any, and interest on the Securities of all series in respect
of which moneys are to be disbursed ratably, the principal of and premium, if any, and interest on the Outstanding Securities denominated
in a Foreign Currency will be the amount in U.S. Dollars based upon exchange rates, determined as specified pursuant to Section 3.01 for
Securities of such series, as of the date for determining whether the Holders entitled to perform such action have performed it or as
of the date of such decision or determination by the Trustee, as the case may be.
(c)
Any decision or determination to be made regarding exchange rates shall be made by an agent appointed by the Issuer; provided,
that such agent shall accept such appointment in writing and the terms of such appointment shall, in the opinion of the Issuer at the
time of such appointment, require such agent to make such determination by a method consistent with the method provided pursuant to Section
3.01 for the making of such decision or determination. All decisions and determinations of such agent regarding exchange rates shall,
in the absence of manifest error, be conclusive for all purposes and irrevocably binding upon the Issuer, the Trustee and all Holders
of the Securities.
Section 3.12 Judgments.
The Issuer may provide pursuant to Section 3.01 for Securities of any series that (a) the obligation, if any, of an Obligor to pay
the principal of, premium, if any, and interest on the Securities of any series in a Foreign Currency or U.S. Dollars (the
“Designated Currency”) as may be specified pursuant to Section 3.01 is of the essence and agrees that, to the fullest
extent possible under applicable law, judgments in respect of such Securities shall be given in the Designated Currency; (b) the
obligation of an Obligor to make payments in the Designated Currency of the principal of and premium, if any, and interest on such
Securities shall, notwithstanding any payment in any other Currency (whether pursuant to a judgment or otherwise), be discharged
only to the extent of the amount in the Designated Currency that the Holder receiving such payment may, in accordance with normal
banking procedures, purchase with the sum paid in such other Currency (after any premium and cost of exchange) on the business day
in the country of issue of the Designated Currency or in the international banking community (in the case of a composite currency)
immediately following the day on which such Holder receives such payment; (c) if the amount in the Designated Currency that may be
so purchased for any reason falls short of the amount originally due, the Issuer shall pay such additional amounts as may be
necessary to compensate for such shortfall; and (d) any obligation of the Obligors not discharged by such payment shall be due as a
separate and independent obligation and, until discharged as provided herein, shall continue in full force and effect.
Section 3.13
CUSIP Numbers. The Issuer in issuing any Securities may use CUSIP, ISIN or other similar numbers, if then generally in use,
and thereafter with respect to such series, the Trustee may use such numbers in any notice of redemption or exchange with respect to such
series provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will
promptly notify the Trustee in writing of any change in the CUSIP, ISIN or other similar numbers.
Article
IV
REDEMPTION OF SECURITIES
Section 4.01
Applicability of Right of Redemption. Redemption of Securities (other than pursuant to a sinking fund, amortization or analogous
provision) permitted by the terms of any series of Securities shall be made (except as otherwise specified pursuant to Section 3.01 for
Securities of any series) in accordance with this Article; provided, however, that if any such terms of a series of Securities shall conflict
with any provision of this Article, the terms of such series shall govern.
Section 4.02
Selection of Securities to be Redeemed.
(a)
If the Issuer shall at any time elect to redeem all or any portion of the Securities of a series then Outstanding, it shall at
least 35 days prior to the Redemption Date fixed by the Issuer (unless a shorter period shall be satisfactory to the Trustee) notify the
Trustee of such Redemption Date and of the principal amount of Securities to be redeemed, and thereupon the Trustee shall, in accordance
with the procedures of the Depositary, select, by lot or in such other manner which may provide for the selection for redemption of a
portion of the principal amount of any Security of such series; provided that the unredeemed portion of the principal amount of any Security
shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. In any case
where more than one Security of such series is registered in the same name, the Trustee may treat the aggregate principal amount so registered
as if it were represented by one Security of such series. The Trustee shall, as soon as practicable, notify the Issuer in writing of the
Securities and portions of Securities so selected.
(b)
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security
that has been or is to be redeemed. If the Issuer shall so direct, Securities registered in the name of the Issuer, any Affiliate or any
Subsidiary thereof shall not be included in the Securities selected for redemption.
Section 4.03
Notice of Redemption.
(a)
Notice of redemption shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at the expense
of the Issuer, not less than 30 nor more than 60 days prior to the Redemption Date (unless a shorter period shall be satisfactory to the
Trustee), to the Holders of Securities of any series to be redeemed in whole or in part pursuant to this Article, in the manner provided
in Section 17.04. Any notice so given shall be conclusively presumed to have been duly given, whether or not the Holder receives such
notice. Failure to give such notice, or any defect in such notice to the Holder of any Security of a series designated for redemption,
in whole or in part, shall not affect the sufficiency of any notice of redemption with respect to the Holder of any other Security of
such series.
(b)
All notices of redemption shall identify the Securities to be redeemed (including CUSIP, ISIN or other similar numbers, if available,
along with the statement in Section 3.13) and shall state:
(i)
such election by the Issuer to redeem Securities of such series pursuant to provisions contained in this Indenture or the terms
of the Securities of such series or a supplemental indenture establishing such series, if such be the case;
(ii)
the Redemption Date;
(iii)
the Redemption Price;
(iv)
if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the Securities of such series to be redeemed;
(v)
that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed, and that,
if applicable, interest thereon shall cease to accrue on and after said date;
(vi)
the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price; and
(vii)
that the redemption is for a sinking fund, if such is the case;
Section 4.04
Deposit of Redemption Price. On or prior to 11:00 a.m., New York City time, on the Redemption Date for any Securities, the
Issuer shall deposit with the Trustee or with a Paying Agent (or, if the Issuer is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 6.03) an amount of money in the Currency in which such Securities are denominated (except as provided
pursuant to Section 3.01) sufficient to pay the Redemption Price of such Securities or any portions thereof that are to be redeemed on
that date.
Section 4.05
Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, any Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price and from and after such date (unless the Issuer shall Default
in the payment of the Redemption Price) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption
in accordance with said notice, such Security shall be paid by the Issuer at the Redemption Price; provided, however, that (unless otherwise
provided pursuant to Section 3.01) installments of interest that have a Stated Maturity on or prior to the Redemption Date for such Securities
shall be payable according to the terms of such Securities and the provisions of Section 3.08.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal thereof and premium, if any, thereon shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security or, if no rate is prescribed therefor in the Security, at the
rate of interest otherwise borne by such Security.
Section 4.06 Securities
Redeemed in Part. Any Security that is to be redeemed only in part shall be surrendered at the Corporate Trust Office or such
other office or agency of the Issuer as is specified in the notice of redemption with, if the Issuer, the Registrar or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer, the Registrar and the
Trustee duly executed by the Holder thereof or his, her or its attorney duly authorized in writing, and the Issuer shall execute,
and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities
of the same series, of like tenor and form, of any authorized denomination as requested by such Holder in aggregate principal amount
equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered; except that if a Global
Security is so surrendered, the Issuer shall execute, and the Trustee shall authenticate and deliver to the Depositary for such
Global Security, without service charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion
of the principal of the Global Security so surrendered. In the case of a Security providing appropriate space for such notation, at
the option of the Holder thereof, the Trustee, in lieu of delivering a new Security or Securities as aforesaid, may make a notation
on such Security of the payment of the redeemed portion thereof.
Article
V
SINKING FUNDS
Section 5.01
Applicability of Sinking Fund.
(a)
Redemption of Securities permitted or required pursuant to a sinking fund for the retirement of Securities of a series by the terms
of such series of Securities shall be made in accordance with such terms of such series of Securities and this Article, except as otherwise
specified pursuant to Section 3.01 for Securities of such series, provided, however, that if any such terms of a series of Securities
shall conflict with any provision of this Article, the terms of such series shall govern.
(b)
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a
“Mandatory Sinking Fund Payment,” and any payment in excess of such minimum amount provided for by the terms of Securities
of any series is herein referred to as an “Optional Sinking Fund Payment.” If provided for by the terms of Securities of any
series, the cash amount of any Mandatory Sinking Fund Payment may be subject to reduction as provided in Section 5.02.
Section 5.02
Mandatory Sinking Fund Obligation. The Issuer may, at its option, satisfy any Mandatory Sinking Fund Payment obligation,
in whole or in part, with respect to a particular series of Securities by (a) delivering to the Trustee Securities of such series in transferable
form theretofore purchased or otherwise acquired by the Issuer or redeemed at the election of the Issuer pursuant to Article IV or (b)
receiving credit for Securities of such series (not previously so credited) acquired by the Issuer and theretofore delivered to the Trustee.
The Trustee shall credit such Mandatory Sinking Fund Payment obligation with an amount equal to the Redemption Price specified in such
Securities for redemption through operation of the sinking fund and the amount of such Mandatory Sinking Fund Payment shall be reduced
accordingly. If the Issuer shall elect to so satisfy any Mandatory Sinking Fund Payment obligation, it shall deliver to the Trustee not
less than 45 days prior to the relevant sinking fund payment date an Officer’s Certificate, which shall designate the Securities
(and portions thereof, if any) so delivered or credited and which shall be accompanied by such Securities (to the extent not theretofore
delivered) in transferable form. In case of the failure of the Issuer, at or before the time so required, to give such notice and deliver
such Securities the Mandatory Sinking Fund Payment obligation shall be paid entirely in moneys.
Section 5.03 Optional
Redemption at Sinking Fund Redemption Price. In addition to the sinking fund requirements of Section 5.02, to the extent, if
any, provided for by the terms of a particular series of Securities, the Issuer may, at its option, make an Optional Sinking Fund
Payment with respect to such Securities. Unless otherwise provided by such terms, (a) to the extent that the right of the Issuer to
make such Optional Sinking Fund Payment shall not be exercised in any year, it shall not be cumulative or carried forward to any
subsequent year, and (b) such optional payment shall operate to reduce the amount of any Mandatory Sinking Fund Payment obligation
as to Securities of the same series. If the Issuer intends to exercise its right to make such optional payment in any year it shall
deliver to the Trustee not less than 45 days prior to the relevant sinking fund payment date an Officer’s Certificate stating
that the Issuer will exercise such optional right, and specifying the amount which the Issuer will pay on or before the next
succeeding sinking fund payment date. Such Officer’s Certificate shall also state that no Event of Default has occurred and is
continuing.
Section 5.04
Application of Sinking Fund Payment.
(a)
If the sinking fund payment or payments made in funds pursuant to either Section 5.02 or 5.03 with respect to a particular series
of Securities plus any unused balance of any preceding sinking fund payments made in funds with respect to such series shall exceed $50,000
(or a lesser sum if the Issuer shall so request, or such equivalent sum for Securities denominated other than in U.S. Dollars), it shall
be applied by the Trustee on the sinking fund payment date next following the date of such payment, unless the date of such payment shall
be a sinking fund payment date, in which case such payment shall be applied on such sinking fund payment date, to the redemption of Securities
of such series at the redemption price specified pursuant to Section 4.03(b). The Trustee shall select, in the manner provided in Section
4.02, for redemption on such sinking fund payment date, a sufficient principal amount of Securities of such series to absorb said funds,
as nearly as may be, and shall, at the expense and in the name of the Issuer, thereupon cause notice of redemption of the Securities to
be given in substantially the manner provided in Section 4.03(a) for the redemption of Securities in part at the option of the Issuer,
except that the notice of redemption shall also state that the Securities are being redeemed for the sinking fund. Any sinking fund moneys
not so applied by the Trustee to the redemption of Securities of such series shall be added to the next sinking fund payment received
in funds by the Trustee and, together with such payment, shall be applied in accordance with the provisions of this Section 5.04. Any
and all sinking fund moneys held by the Trustee on the last sinking fund payment date with respect to Securities of such series, and not
held for the payment or redemption of particular Securities of such series, shall be applied by the Trustee to the payment of the principal
of the Securities of such series at Maturity.
(b)
On or prior to each sinking fund payment date, the Issuer shall pay to the Trustee a sum equal to all interest accrued to but not
including the date fixed for redemption on Securities to be redeemed on such sinking fund payment date pursuant to this Section 5.04.
(c)
The Trustee shall not redeem any Securities of a series with sinking fund moneys or mail any notice of redemption of Securities
of such series by operation of the sinking fund during the continuance of a Default in payment of interest on any Securities of such series
or of any Event of Default (other than an Event of Default occurring as a consequence of this paragraph) of which a Responsible Officer
of the Trustee has actual knowledge, except that if the notice of redemption of any Securities of such series shall theretofore have been
mailed in accordance with the provisions hereof, the Trustee shall redeem such Securities if funds sufficient for that purpose shall be
deposited with the Trustee in accordance with the terms of this Article. Except as aforesaid, any moneys in the sinking fund at the time
any such Default or Event of Default shall occur and any moneys thereafter paid into the sinking fund shall, during the continuance of
such Default or Event of Default, be held as security for the payment of all the Securities of such series; provided, however, that in
case such Default or Event of Default shall have been cured or waived as provided herein, such moneys shall thereafter be applied on the
next sinking fund payment date on which such moneys are required to be applied pursuant to the provisions of this Section 5.04.
Article
VI
PARTICULAR
COVENANTS OF THE ISSUER AND THE GUARANTOR
The Issuer hereby covenants and agrees as follows:
Section 6.01
Payments of Securities. The Issuer will duly and punctually pay the principal of and premium, if any, on each series of
Securities, and the interest which shall have accrued thereon, at the dates and place and in the manner provided in the Securities and
in this Indenture.
Section 6.02
Paying Agent.
(a)
The Issuer will maintain in each Place of Payment for any series of Securities an office or agency where Securities may be presented
or surrendered for payment, where Securities of such series may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Issuer in respect of the Securities and this Indenture may be served (the “Paying Agent”). The
Issuer will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at
any time the Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Issuer
hereby appoints the Trustee as Paying Agent to receive all presentations, surrenders, notices and demands.
(b)
The Issuer may also from time to time designate different or additional offices or agencies where the Securities of any series
may be presented or surrendered for any or all such purposes (in or outside of such Place of Payment), and may from time to time rescind
any such designations; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligations
described in the preceding paragraph. The Issuer will give prompt written notice to the Trustee of any such additional designation or
rescission of designation and of any change in the location of any such different or additional office or agency. The Issuer shall enter
into an appropriate agency agreement with any Paying Agent not a party to this Indenture. The agreement shall implement the provisions
of this Indenture that relate to such agent. The Issuer shall notify the Trustee of the name and address of each such agent. The Issuer
or any Affiliate thereof may act as Paying Agent, except that neither the Issuer nor any Affiliate thereof may act as Paying Agent with
respect to any series of Securities as to which the Issuer has effected satisfaction and discharge pursuant to Section 12.02 or Discharge
(as defined in Section 12.03) from its obligations with respect to the Securities of such series pursuant to Section 12.03.
Section 6.03
To Hold Payment in Trust.
(a)
If the Issuer or an Affiliate thereof shall at any time act as Paying Agent with respect to any series of Securities, then, on
or before the date on which the principal of and premium, if any, or interest on any of the Securities of that series by their terms or
as a result of the calling thereof for redemption shall become payable, the Issuer or such Affiliate will segregate and hold in trust
for the benefit of the Holders of such Securities or the Trustee a sum sufficient to pay such principal and premium, if any, or interest
which shall have so become payable until such sums shall be paid to such Holders or otherwise disposed of as herein provided, and will
notify the Trustee of its action or failure to act in that regard. Upon any proceeding under any federal bankruptcy laws with respect
to the Issuer or any Affiliate thereof, if the Issuer or such Affiliate is then acting as Paying Agent, the Trustee shall replace the
Issuer or such Affiliate as Paying Agent.
(b) If
the Issuer shall appoint, and at the time have, a Paying Agent for the payment of the principal of and premium, if any, or interest
on any series of Securities, then prior to 11:00 a.m., New York City time, on the date on which the principal of and premium, if
any, or interest on any of the Securities of that series shall become payable as aforesaid, whether by their terms or as a result of
the calling thereof for redemption, the Issuer will deposit with such Paying Agent a sum sufficient to pay such principal and
premium, if any, or interest, such sum to be held in trust for the benefit of the Holders of such Securities or the Trustee, and
(unless such Paying Agent is the Trustee), the Issuer or any other obligor of such Securities will promptly notify the Trustee of
its payment or failure to make such payment.
(c)
If the Paying Agent shall be other than the Trustee, the Issuer will cause such Paying Agent to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 6.03, that such Paying
Agent shall:
(i)
hold all moneys held by it for the payment of the principal of and premium, if any, or interest on the Securities of that series
in trust for the benefit of the Holders of such Securities until such sums shall be paid to such Holders or otherwise disposed of as herein
provided;
(ii)
give to the Trustee notice of any Default by the Issuer or any other obligor upon the Securities of that series in the making of
any payment of the principal of and premium, if any, or interest on the Securities of that series; and
(iii)
at any time during the continuance of any such Default, upon the written request of the Trustee, pay to the Trustee all sums so
held in trust by such Paying Agent.
(d)
Anything in this Section 6.03 to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a release,
satisfaction or discharge of this Indenture or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by
the Issuer or by any Paying Agent other than the Trustee as required by this Section 6.03, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Issuer or such Paying Agent.
(e)
Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in trust for the payment of the principal
of and premium, if any, or interest on any Security of any series and remaining unclaimed for two years after such principal and premium,
if any, or interest has become due and payable shall be paid to the Issuer upon Issuer Order along with any interest that has accumulated
thereon as a result of such money being invested at the direction of the Issuer, or (if then held by the Issuer) shall be discharged from
such trust, and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer and the Guarantor
for payment of such amounts without interest thereon, and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent
before being required to make any such repayment, may at the expense of the Issuer cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of general circulation in The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Issuer.
Section 6.04
Merger, Consolidation and Sale of Assets. Except as otherwise provided as contemplated by Section 3.01 with respect to any
series of Securities:
(a) No
Obligor will consolidate with any other entity or permit a merger of any other entity into such Obligor or permit such Obligor to be
merged into any other entity, or sell, convey, transfer or lease all or substantially all its assets to another entity, unless (i)
either such Obligor shall be the continuing entity, or the successor, transferee or lessee entity (if other than such Obligor) shall
be organized and existing under the laws of the United States or any State thereof and shall expressly assume, by indenture
supplemental hereto, executed and delivered by such entity prior to or simultaneously with such consolidation, merger, sale,
conveyance, transfer or lease, the due and punctual payment of the principal of and interest and premium, if any, on all the
Securities, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders
and the Trustee under this Indenture or under the Securities to be performed or observed by such Obligor; and (ii) immediately after
such consolidation, merger, sale, conveyance, transfer or lease, such Obligor or the successor, transferee or lessee entity (if
other than such Obligor) would not be in Default in the performance of any covenant or condition of this Indenture and no Event of
Default would have occurred and be continuing.
(b)
Upon any consolidation with or merger into any other entity, or any sale, conveyance, transfer or lease of all or substantially
all of the assets of an Obligor in accordance with this Section 6.04, the successor entity formed by such consolidation or into or with
which such Obligor is merged or to which such Obligor is sold or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, such Obligor under this Indenture with the same effect as if such successor
entity had been named as such Obligor herein, and thereafter, except in the case of a lease, the predecessor Obligor shall be relieved
of all obligations and covenants under this Indenture and the Securities, and from time to time such entity may exercise each and every
right and power of such Obligor under this Indenture, in the name of such Obligor, or in its own name; and any act or proceeding by any
provision of this Indenture required or permitted to be done by the Board of Directors or any officer of such Obligor may be done with
like force and effect by the like board or officer of any entity that shall at the time be the successor of such Obligor hereunder. In
the event of any such sale or conveyance, but not any such lease, the applicable Obligor (or any successor entity which shall theretofore
have become such in the manner described in this Section 6.04) shall be discharged from all obligations and covenants under this Indenture
and the Securities and may thereupon be dissolved and liquidated.
Section 6.05
Compliance Certificate. Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities,
the Issuer shall furnish to the Trustee annually, within 120 days after the end of each fiscal year, a brief certificate from the principal
executive officer, principal financial officer, principal accounting officer, executive vice president, senior vice president or vice
president and treasurer as to his or her knowledge of the Obligors’ compliance with all conditions and covenants under this Indenture
(which compliance shall be determined without regard to any period of grace or requirement of notice provided under this Indenture) and,
in the event of any Default, specifying each such Default and the nature and status thereof of which such person may have knowledge. Such
certificates need not comply with Section 17.01 of this Indenture.
Section 6.06 Conditional
Waiver by Holders of Securities. Anything in this Indenture to the contrary notwithstanding, the Obligors may fail or omit in
any particular instance to comply with a covenant or condition set forth herein with respect to any series of Securities (other than
the obligation to pay the principal of, premium, if any, and interest on any Security of such series, or in the case of any
Securities which are convertible into or exchangeable for securities or property, the obligation to convert or exchange such
Securities, or a covenant or provision hereof which under Section 14.02 cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected) if the Issuer shall have obtained and filed with the Trustee, prior to
the time of such failure or omission, evidence (as provided in Article VIII) of the consent of the Holders of a majority in
aggregate principal amount of the Securities of such series at the time Outstanding, either waiving such compliance in such instance
or generally waiving compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, or impair any right consequent thereon and, until such waiver shall have become
effective, the obligations of the Issuer and the duties of the Trustee in respect of any such covenant or condition shall remain in
full force and effect.
Section 6.07
Statement by Officers as to Default. The Issuer shall deliver to the Trustee as soon as possible and in any event within
30 days after the Issuer becomes aware of the occurrence of any Event of Default or an event which, with the giving of notice or the lapse
of time or both, would constitute an Event of Default, an Officer’s Certificate setting forth the details of such Event of Default
or Default and the action which the Issuer proposes to take with respect thereto.
Section 6.08
Maintenance of Insurance. The Issuer will maintain, or cause to be maintained, insurance with responsible companies on all
properties of the Issuer and its Subsidiaries and against all tort claims that may be incurred by the Issuer and its Subsidiaries, all
to the extent and in such amounts and against such risks as are usually covered by insurance policies carried by owners of similar enterprises.
Article
VII
REMEDIES OF TRUSTEE AND SECURITYHOLDERS
Section 7.01
Events of Default. Except where otherwise indicated by the context or where the term is otherwise defined for a specific
purpose, the term “Event of Default” as used in this Indenture with respect to Securities of any series shall mean any of
the following described events unless it is specifically deleted or modified, insofar as concerns the Securities of such series, in the
manner contemplated in Section 3.01:
(a)
the failure of the Issuer to pay any installment of interest on any Security of such series when and as the same shall become payable,
which failure shall have continued unremedied for a period of 30 days;
(b)
the failure of the Issuer to pay any principal of (or premium, if any, on) any Security of such series, when and as the same shall
become payable, whether at Maturity as therein expressed, by call for redemption (otherwise than pursuant to a sinking fund), upon acceleration
or otherwise;
(c)
the failure of the Issuer to pay a sinking fund installment, if any, when and as the same shall become payable by the terms of
a Security of such series;
(d)
the failure of an Obligor, subject to the provisions of Section 6.06, to perform any covenants or agreements contained in this
Indenture (including any indenture supplemental hereto or Officer’s Certificate pursuant to which the Securities of such series
were issued as contemplated by Section 3.01) (other than a covenant or agreement which has been expressly included in this Indenture solely
for the benefit of a series of Securities other than that series and other than a covenant or agreement a default in the performance of
which is elsewhere in this Section 7.01 specifically addressed), or in any Securities of such series, which failure shall not have been
remedied for a period of 60 days after written notice shall have been given to the Obligors by the Trustee or shall have been given to
the Obligors and the Trustee by Holders of 25% or more in aggregate principal amount of the Securities of such series then Outstanding,
specifying such failure, requiring the Obligors to remedy the same and stating that such notice is a “Notice of Default” hereunder;
(e)
the entry by a court having jurisdiction in the premises of a decree or order for relief in respect of an Obligor in an involuntary
case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency
or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee or sequestrator (or
similar official) of an Obligor or of substantially all the property of an Obligor or ordering the winding-up or liquidation of its affairs
and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(f)
the commencement by an Obligor of a voluntary case under the federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or other similar law now or hereafter in effect, or the consent by an Obligor to the
entry of an order for relief in an involuntary case under any such law, or the consent by an Obligor to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian or sequestrator (or similar official) of an Obligor or of substantially all the
property of an Obligor or the making by it of an assignment for the benefit of creditors or the admission by it in writing of its inability
to pay its debts generally as they become due, or the taking of corporate action by an Obligor in furtherance of any action;
(g)
any Guarantee is not, or is claimed by the Guarantor not to be, in full force and effect; or
(h)
the occurrence of any other Event of Default with respect to Securities of such series as provided in Section 3.01.
Notwithstanding the foregoing provisions of this
Section 7.01, if the principal or any premium or interest on any Security is payable in a Currency other than the Currency of the United
States and such Currency is not available to the Issuer for making payment thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer, the Issuer will be entitled to satisfy its obligations to Holders of the Securities by
making such payment in the Currency of the United States in an amount equal to the Currency of the United States equivalent of the amount
payable in such other Currency, as determined by the Issuer’s agent in accordance with Section 3.11(c) hereof by reference to the
noon buying rate in The City of New York for cable transfers for such Currency (“Exchange Rate”), as such Exchange Rate is
reported or otherwise made available by the Federal Reserve Bank of New York on the date of such payment, or, if such rate is not then
available, on the basis of the most recently available Exchange Rate. Notwithstanding the foregoing provisions of this Section 7.01, any
payment made under such circumstances in the Currency of the United States where the required payment is in a Currency other than the
Currency of the United States will not constitute an Event of Default under this Indenture.
Section 7.02 Acceleration;
Rescission and Annulment.
(a) Except
as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, if any one or more of the
above-described Events of Default (other than an Event of Default specified in Section 7.01(e) or 7.01(f)) shall happen with respect
to Securities of any series at the time Outstanding, then, and in each and every such case, during the continuance of any such Event
of Default, the Trustee or the Holders of 25% or more in principal amount of the Securities of such series then Outstanding may
declare the principal (or, if the Securities of that series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of and all accrued but unpaid interest on all the Securities of such series
then Outstanding to be due and payable immediately by a notice in writing to the Issuer and the Guarantor (and to the Trustee if
given by Holders), and upon any such acceleration such principal amount (or specified amount) and interest shall become immediately
due and payable. If an Event of Default specified in Section 7.01(e) or 7.01(f) occurs and is continuing, then in every such case,
the principal of (or, if the Securities of that series are Original Issue Discount Securities, such portion of the principal amount
as may be specified by the terms of that series) of and all accrued but unpaid interest on all of the Securities of that series then
Outstanding shall automatically, and without any acceleration or any other action on the part of the Trustee or any Holder, become
due and payable immediately. Upon payment of such amounts in the Currency in which such Securities are denominated (subject to the
last paragraph of Section 7.01 and except as otherwise provided pursuant to Section 3.01), all obligations of the Issuer in respect
of the payment of principal of and interest on the Securities of such series shall terminate.
(b)
The provisions of Section 7.02(a), however, are subject to the condition that, at any time after the principal of all the Securities
of such series, to which any one or more of the above-described Events of Default is applicable, shall have been so declared to be or
shall have automatically become due and payable, and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter provided in this Article, Holders of a majority in principal amount of the Securities of that Series then Outstanding,
by written notice to the Issuer, the Guarantor and the Trustee, may rescind and annual such acceleration if:
(i)
the Issuer or the Guarantor has paid or deposited with the Trustee or Paying Agent a sum in the Currency in which such Securities
are denominated (subject to the last paragraph of Section 7.01 and except as otherwise provided pursuant to Section 3.01) sufficient to
pay:
(A)
all amounts owing the Trustee and any predecessor trustee hereunder under Section 11.01(a) (provided, however, that all sums payable
under this clause (A) shall be paid in U.S. Dollars);
(B)
all arrears of interest, if any, upon all the Securities of such series (with interest, to the extent that interest thereon shall
be legally enforceable, on any overdue installment of interest at the rate or rates prescribed therefor in such Securities or, if no such
rate is prescribed therefor in such Securities, at the rate of interest otherwise borne by such Securities); and
(C)
the principal of and premium, if any, on any Securities of such series that have become due otherwise than by such acceleration
and interest on such principal and (to the extent that interest thereon shall be legally enforceable) interest on the overdue premium,
if any, at the rate prescribed therefor in such Securities or, if no rate is prescribed therefor in such Securities, at the rate of interest
otherwise borne by such Securities; and
(ii)
every other Default and Event of Default with respect to Securities of that series, other than the non-payment of the principal
of Securities of that series which have become due solely by such acceleration, have been cured or waived as provided in Section 7.06.
(c)
No such rescission shall affect any subsequent default or impair any right consequent thereon.
(d) For
all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such acceleration, unless such
acceleration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for
all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration,
and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with
interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount
Securities.
Section 7.03
Other Remedies. If the Issuer shall fail for a period of 30 days to pay any installment of interest on the Securities of
any series or shall fail to pay any principal of or premium, if any, on any of the Securities of such series when and as the same shall
become due and payable, whether at Maturity, or by call for redemption (other than pursuant to the sinking fund), by acceleration as authorized
by this Indenture, or otherwise, or shall fail to make any required sinking fund payment as to a series of Securities, then, upon demand
of the Trustee, the Issuer will pay to the Paying Agent for the benefit of the Holders of Securities of such series then Outstanding the
whole amount which then shall have become due and payable on all the Securities of such series for principal, premium, if any, and interest,
with interest on the overdue principal and (so far as the same may be legally enforceable) on the overdue premium, if any, and overdue
installments of interest at the rate prescribed therefor in such Securities or, if no rate is prescribed therefor in such Securities,
at the rate of interest otherwise borne by such Securities, and all amounts owing the Trustee and any predecessor trustee hereunder under
Section 11.01(a).
If an Event of Default with respect to the Securities
of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of
the Holders of the Securities of such series by such appropriate judicial proceedings as the Trustee shall deem appropriate to protect
and enforce any such rights, either by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture,
or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
In case the Issuer shall fail forthwith to pay
such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute
any action or proceeding at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding
to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or any other obligor upon the Securities
of such series, and collect the moneys adjudged or decreed to be payable out of the property of the Issuer, the Guarantor or any other
obligor upon the Securities of such series, wherever situated, in the manner provided by law. Every recovery of judgment in any such action
or other proceeding, subject to the payment to the Trustee of all amounts owing the Trustee and any predecessor trustee hereunder under
Section 11.01(a), shall be for the ratable benefit of the Holders of such series of Securities which shall be the subject of such action
or proceeding. All rights of action upon or under any of the Securities or this Indenture may be enforced by the Trustee without the possession
of any of the Securities and without the production of any thereof at any trial or any proceeding relative thereto.
Section 7.04 Trustee
as Attorney-in-Fact. The Trustee is hereby appointed, and each and every Holder of the Securities, by receiving and holding the
same, shall be conclusively deemed to have appointed the Trustee, the true and lawful attorney-in-fact of such Holder, with
authority to make or file (whether or not the an Obligor shall be in Default in respect of the payment of the principal of, or
premium, if any, or interest on, any of the Securities), in its own name and as trustee of an express trust or otherwise as it shall
deem advisable, in any receivership, insolvency, liquidation, bankruptcy, reorganization or other judicial proceeding relative to
the an Obligor or any other obligor upon the Securities or to their respective creditors or property, any and all claims, proofs of
claim, proofs of debt, petitions, consents, other papers and documents and amendments of any thereof, as may be necessary or
advisable in order to have the claims of the Trustee and any predecessor trustee hereunder and of the Holders of the Securities
allowed in any such proceeding and to collect and receive any moneys or other property payable or deliverable on any such claim, and
to execute and deliver any and all other papers and documents and to do and perform any and all other acts and things, as it may
deem necessary or advisable in order to enforce in any such proceeding any of the claims of the Trustee and any predecessor trustee
hereunder and of any of such Holders in respect of any of the Securities; and any receiver, assignee, trustee, custodian or debtor
in any such proceeding is hereby authorized, and each and every taker or Holder of the Securities, by receiving and holding the
same, shall be conclusively deemed to have authorized any such receiver, assignee, trustee, custodian or debtor, to make any such
payment or delivery only to or on the order of the Trustee, and to pay to the Trustee any amount due it and any predecessor trustee
hereunder under Section 11.01(a); provided, however, that nothing herein contained shall be deemed to authorize or empower the
Trustee to consent to or accept or adopt, on behalf of any Holder of Securities, any plan of reorganization or readjustment
affecting the Securities or the related Guarantees, if any, or the rights of any Holder thereof, or to authorize or empower the
Trustee to vote in respect of the claim of any Holder of any Securities in any such proceeding.
Section 7.05
Priorities. Any moneys or properties collected by the Trustee with respect to a series of Securities under this Article
VII shall be applied in the order following, at the date or dates fixed by the Trustee for the distribution of such moneys or properties
and, in the case of the distribution of such moneys or properties on account of the Securities of any series, upon presentation of the
Securities of such series, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:
First: To the payment of all amounts
due to the Trustee and any predecessor trustee hereunder under Section 11.01(a).
Second: Subject to Article XV (to the
extent applicable to any series of Securities then outstanding), to the payment of the amounts then due and unpaid for principal of and
any premium and interest on the Outstanding Securities of such series in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Outstanding Securities
for principal and any premium and interest, respectively.
Any surplus then remaining shall be paid to the Issuer or as directed
by a court of competent jurisdiction.
Section 7.06 Control
by Securityholders; Waiver of Past Defaults. The Holders of a majority in principal amount of the Securities of any series at
the time Outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee
hereunder, or of exercising any trust or power hereby conferred upon the Trustee with respect to the Securities of such series,
provided, however, that, subject to the provisions of Sections 11.01 and 11.02, the Trustee shall have the right to decline to
follow any such direction if the Trustee being advised by counsel determines that the action so directed may not lawfully be taken
or would be unduly prejudicial to Holders not joining in such direction or would involve the Trustee in personal liability. Prior to
any acceleration of the Maturity of the Securities of any series, the Holders of a majority in aggregate principal amount of such
series of Securities at the time Outstanding may on behalf of the Holders of all of the Securities of such series waive any past
Default or Event of Default hereunder and its consequences except a Default in the payment of interest or any premium on or
principal of the Securities of such series or in the case of any Securities which are convertible into or exchangeable for other
securities or property, a Default in any such conversion or exchange, or a Default in respect of a covenant or provision hereof
which under Section 14.02 cannot be modified or amended without the consent of the Holder of each Outstanding Security of such
series affected. Upon any such waiver the Obligors, the Trustee and the Holders of the Securities of such series shall be restored
to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Default or
Event of Default or impair any right consequent thereon. Whenever any Default or Event of Default hereunder shall have been waived
as permitted by this Section 7.06, said Default or Event of Default shall for all purposes of the Securities of such series and this
Indenture be deemed to have been cured and to be not continuing.
Section 7.07
Limitation on Suits. No Holder of any Security of any series shall have any right to institute any action, suit or proceeding
at law or in equity for the execution of any trust hereunder or for the appointment of a receiver or for any other remedy hereunder, in
each case with respect to an Event of Default with respect to such series of Securities, unless such Holder previously shall have given
to the Trustee written notice of one or more of the Events of Default herein specified with respect to such series of Securities, and
unless also the Holders of 25% or more in principal amount of the Securities of such series then Outstanding shall have requested the
Trustee in writing to take action in respect of the matter complained of, and unless also there shall have been offered to the Trustee
security and indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby, and
the Trustee, for 60 days after receipt of such notification, request and offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding; and such notification, request and offer of indemnity are hereby declared in every such case to be
conditions precedent to any such action, suit or proceeding by any Holder of any Security of such series; it being understood and intended
that no one or more of the Holders of Securities of such series shall have any right in any manner whatsoever by his, her, its or their
action to enforce any right hereunder, except in the manner herein provided, and that every action, suit or proceeding at law or in equity
shall be instituted, had and maintained in the manner herein provided and for the equal benefit of all Holders of the Outstanding Securities
of such series and shall not affect, disturb or prejudice the rights of any other Holder (the Trustees shall have no affirmative duty
to ascertain whether or not such actions or forbearances are unduly prejudiced to such Holders); provided, however, that nothing in this
Indenture or in the Securities of such series or the related Guarantees, if any, shall affect or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of, premium, if any, and interest on the Securities of such series to the respective
Holders of such Securities at the respective due dates in such Securities stated, or affect or impair the right, which is also absolute
and unconditional, of such Holders to institute suit to enforce the payment thereof.
Section 7.08
Undertaking for Costs. All parties to this Indenture and each Holder of any Security, by such Holder’s acceptance
thereof, shall be deemed to have agreed that any court may in its discretion require, in any action, suit or proceeding for the enforcement
of any right or remedy under this Indenture, or in any action, suit or proceeding against the Trustee for any action taken or omitted
by it as Trustee, the filing by any party litigant in such action, suit or proceeding of an undertaking to pay the costs of such action,
suit or proceeding, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such action, suit or proceeding, having due regard to the merits and good faith of the claims
or defenses made by such party litigant; provided, however, that the provisions of this Section 7.08 shall not apply to any action, suit
or proceeding instituted by the Trustee, to any action, suit or proceeding instituted by any one or more Holders of Securities holding
in the aggregate more than 10% in principal amount of the Securities of any series Outstanding, or to any action, suit or proceeding instituted
by any Holder of Securities of any series for the enforcement of the payment of the principal of or premium, if any, or the interest on,
any of the Securities of such series, on or after the respective due dates expressed in such Securities.
Section 7.09 Remedies
Cumulative. No remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities of any series is intended
to be exclusive of any other remedy or remedies, and each and every remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or by statute. No delay or omission of the Trustee or
of any Holder of the Securities of any series to exercise any right or power accruing upon any Default or Event of Default shall
impair any such right or power or shall be construed to be a waiver of any such Default or Event of Default or an acquiescence
therein; and every power and remedy given by this Article VII to the Trustee and to the Holders of Securities of any series,
respectively, may be exercised from time to time and as often as may be deemed expedient by the Trustee or by the Holders of
Securities of such series, as the case may be. In case the Trustee or any Holder of Securities of any series shall have proceeded to
enforce any right under this Indenture and the proceedings for the enforcement thereof shall have been discontinued or abandoned
because of waiver or for any other reason or shall have been adjudicated adversely to the Trustee or to such Holder of Securities,
then and in every such case the Obligors, the Trustee and the Holders of the Securities of such series shall severally and
respectively be restored to their former positions and rights hereunder, and thereafter all rights, remedies and powers of the
Trustee and the Holders of the Securities of such series shall continue as though no such proceedings had been taken, except as to
any matters so waived or adjudicated.
Article
VIII
CONCERNING THE SECURITYHOLDERS
Section 8.01
Evidence of Action of Securityholders. Whenever in this Indenture it is provided that the Holders of a specified percentage
or a majority in aggregate principal amount of the Securities or of any series of Securities may take any action (including the making
of any demand or request, the giving of any notice, consent or waiver or the taking of any other action), the fact that at the time of
taking any such action the Holders of such specified percentage or majority have joined therein may be evidenced by (a) any instrument
or any number of instruments of similar tenor executed by Securityholders in person, by an agent or by a proxy appointed in writing, including
through an electronic system for tabulating consents operated by the Depositary for such series or otherwise (such action becoming effective,
except as herein otherwise expressly provided, when such instruments or evidence of electronic consents are delivered to the Trustee and,
where it is hereby expressly required, to the Obligors), or (b) by the record of the Holders of Securities voting in favor thereof at
any meeting of Securityholders duly called and held in accordance with the provisions of Article IX, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of Securityholders.
Section 8.02
Proof of Execution or Holding of Securities. Proof of the execution of any instrument by a Securityholder or his, her or
its agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a)
The fact and date of the execution by any Person of any such instrument may be proved (i) by the certificate of any notary public
or other officer in any jurisdiction who, by the laws thereof, has power to take acknowledgments or proof of deeds to be recorded within
such jurisdiction, that the Person who signed such instrument did acknowledge before such notary public or other officer the execution
thereof, or (ii) by the affidavit of a witness of such execution sworn to before any such notary or other officer. Where such execution
is by a Person acting in other than his or her individual capacity, such certificate or affidavit shall also constitute sufficient proof
of his or her authority.
(b)
The ownership of Securities of any series shall be proved by the Register of such Securities or by a certificate of the Registrar
for such series.
(c)
The record of any Holders’ meeting shall be proved in the manner provided in Section 9.06.
(d)
The Trustee may require such additional proof of any matter referred to in this Section 8.02 as it shall deem appropriate or necessary,
so long as the request is a reasonable one.
(e)
If the Issuer shall solicit from the Holders of Securities of any series any action, the Issuer may, at its option fix in advance
a record date for the determination of Holders of Securities entitled to take such action, but the Issuer shall have no obligation to
do so. Any such record date shall be fixed at the Issuer’s discretion. If such a record date is fixed, such action may be sought
or given before or after the record date, but only the Holders of Securities of record at the close of business on such record date shall
be deemed to be Holders of Securities for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities
of such series have authorized or agreed or consented to such action, and for that purpose the Outstanding Securities of such series shall
be computed as of such record date.
Section 8.03
Persons Deemed Owners.
(a)
The Issuer, the Guarantor, the Trustee or any of their agents may treat the Person in whose name any Security is registered as
the owner of such Security for the purpose of receiving payment of principal of and premium, if any, and (subject to Section 3.08) interest,
if any, on, such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Issuer, the
Trustee nor any of their agents shall be affected by notice to the contrary. All payments made to any Holder, or upon his, her or its
order, shall be valid, and, to the extent of the sum or sums paid, effectual to satisfy and discharge the liability for moneys payable
upon such Security.
(b)
None of the Obligors, the Trustee, or any of their agents will have any responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
Section 8.04
Effect of Consents. After an amendment, supplement, waiver or other action becomes effective as to any series of Securities,
a consent to it by a Holder of such series of Securities is a continuing consent conclusive and binding upon such Holder and every subsequent
Holder of the same Securities or portion thereof, and of any Security issued upon the transfer thereof or in exchange therefor or in place
thereof, even if notation of the consent is not made on any such Security.
Article
IX
SECURITYHOLDERS’ MEETINGS
Section 9.01
Purposes of Meetings. A meeting of Securityholders of any or all series may be called at any time and from time to time
pursuant to the provisions of this Article IX for any of the following purposes:
(a)
to give any notice to the Issuer or to the Trustee, or to give any directions to the Trustee, or to consent to the waiving of any
Default or Event of Default hereunder and its consequences, or to take any other action authorized to be taken by Securityholders pursuant
to any of the provisions of Article VIII;
(b)
to remove the Trustee and nominate a successor trustee pursuant to the provisions of Article XI;
(c)
to consent to the execution of an Indenture or of indentures supplemental hereto pursuant to the provisions of Section 14.02; or
(d) to take any other action authorized to be taken by or on behalf of the Holders of any specified aggregate principal amount of
the Securities of any one or more or all series, as the case may be, under any other provision of this Indenture or under applicable law.
Section 9.02
Call of Meetings by Trustee. The Trustee may at any time call a meeting of all Securityholders of any or all series that
may be affected by the action proposed to be taken, to take any action specified in Section 9.01, to be held at such time and at such
place as the Trustee shall determine. Notice of every meeting of the Securityholders of a series, setting forth the time and the place
of such meeting and in general terms the action proposed to be taken at such meeting, shall be mailed at the expense of the Issuer to
Holders of Securities of such series at their addresses as they shall appear on the Register of the Issuer. Such notice shall be mailed
not less than 20 nor more than 90 days prior to the date fixed for the meeting.
Section 9.03
Call of Meetings by Issuer or Securityholders. In case at any time the Issuer or the Holders of at least 10% in aggregate
principal amount of the Securities of any series then Outstanding that may be affected by the action proposed to be taken, shall have
requested the Trustee to call a meeting of Securityholders of such series, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within 20 days after receipt of
such request, then the Issuer or such Securityholders may determine the time and the place for such meeting and may call such meeting
to take any action authorized in Section 9.01, by mailing notice thereof as provided in Section 9.02.
Section 9.04
Qualifications for Voting. To be entitled to vote at any meeting of Securityholders, a Person shall (a) be a Holder of one
or more Securities affected by the action proposed to be taken at the meeting or (b) be a Person appointed by an instrument in writing
as proxy by a Holder of one or more such Securities. The only Persons who shall be entitled to be present or to speak at any meeting of
Securityholders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee and its
counsel, any representatives of the Issuer and its counsel and any representatives of the Guarantor and its counsel. Anything in this
Indenture to the contrary notwithstanding, unless otherwise expressly provided pursuant to Section 3.01 with respect to the Securities
of any series, any vote, consent, waiver or other action given or taken by the Holders of any series of Securities at a meeting shall
be given or taken, as the case may be, by the Holders of such series of Securities as a separate class.
Section 9.05
Regulation of Meetings.
(a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Securityholders, in regard to proof of the holding of Securities and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall deem fit.
(b) The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by
the Issuer or by Securityholders as provided in Section 9.03, in which case the Issuer or the Securityholders calling the meeting, as
the case may be, shall in like manner appoint a temporary chair. A permanent chairman and a permanent secretary of the meeting shall
be elected by majority vote of the meeting.
(c) At
any meeting of Securityholders of a series, each Securityholder of such series or such Securityholder’s proxy shall be
entitled to one vote for each $1,000 principal amount of Securities of such series Outstanding held or represented by him; provided,
however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by
the chairman of the meeting to be not Outstanding. If the Securities of any series are issuable in minimum denominations of less
than $1,000, then a Holder of such a Security in a principal amount of less than $1,000 shall be entitled to a fraction of one vote
which is equal to the fraction that the principal amount of such Security bears to $1,000. The chairman of the meeting shall have no
right to vote other than by virtue of Securities of such series held by him or her or instruments in writing as aforesaid duly
designating him or her as the Person to vote on behalf of other Securityholders. At any meeting of the Securityholders of any series
duly called pursuant to the provisions of Section 9.02 or 9.03, the presence of Persons holding or representing Securities of such
series in an aggregate principal amount sufficient to take action, insofar as concerns the Securities of such series, upon the
business for the transaction of which such meeting was called shall be necessary to constitute a quorum for a meeting of Holders of
the Securities of such series, and any such meeting may be adjourned from time to time by a majority of those present, whether or
not constituting a quorum, and the meeting may be held as so adjourned without further notice.
Section 9.06
Voting. The vote upon any resolution submitted to any meeting of Securityholders of a series shall be by written ballots
on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal
amounts of the Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors
of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of
each meeting of Securityholders shall be prepared by the secretary of the meeting and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more Persons having knowledge of the facts
setting forth a copy of the notice of the meeting and showing that said notice was mailed as provided in Section 9.02. The record shall
show the principal amounts of the Securities voting in favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to the Issuer and the
other to the Trustee to be preserved by the Trustee. Any record so signed and verified shall be conclusive evidence of the matters therein
stated.
Section 9.07
No Delay of Rights by Meeting. Nothing contained in this Article IX shall be deemed or construed to authorize or permit,
by reason of any call of a meeting of Securityholders of any series or any rights expressly or impliedly conferred hereunder to make such
call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or to the Securityholders
of such series under any of the provisions of this Indenture or of the Securities of such series.
Article
X
REPORTS BY THE ISSUER AND THE TRUSTEE AND
SECURITYHOLDERS’ LISTS
Section 10.01
Reports by Trustee.
(a) So
long as any Securities are outstanding, the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under
this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided therein. If required by
Section 313(a) of the Trust Indenture Act, the Trustee shall, within 60 days after each anniversary following the date of this Indenture
deliver to Holders a brief report which complies with the provisions of such Section 313(a).
(b) The
Trustee shall, at the time of the transmission to the Holders of Securities of any report pursuant to the provisions of this Section
10.01, file a copy of such report with each stock exchange upon which the Securities are listed, if any, and also with the SEC in
respect of a Security listed and registered on a national securities exchange, if any. The Issuer agrees to notify the Trustee when,
as and if the Securities become listed on any stock exchange or any delisting thereof.
(c) The
Issuer will reimburse the Trustee for all expenses incurred in the preparation and transmission of any report pursuant to the provisions
of this Section 10.01 and of Section 10.02.
Section 10.02
Reports by the Guarantor.
The Issuer shall:
(a) file with or deliver to the Trustee, within
15 days after the Guarantor is required to file the same with the SEC, copies of the annual and quarterly reports and the information,
documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations
prescribe) that the Guarantor may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if
the Guarantor is not required to file information, documents or reports with the SEC pursuant to either Section 13 or Section 15(d) of
the Exchange Act, then the Guarantor will file with or deliver to the Trustee and the SEC, in accordance with any other rules and regulations
that may be prescribed from time to time by the SEC, such annual and quarterly reports and supplementary and periodic information, documents
and reports that may be required pursuant to Section 13 of the Exchange Act, in respect of a security listed and registered on a national
securities exchange, as may be prescribed from time to time by the SEC in such rules and regulations; or
(b) if at any time the Guarantor is not subject
to Section 13 or 15(d) of the Exchange Act and the Guarantor is not providing annual and quarterly reports and supplementary and periodic
information, documents and reports to the SEC and the Trustee pursuant to Section 10.02(a) of this Indenture, the Guarantor will, at its
option, either (i) post on a publicly available website or (ii) post on IntraLinks or any comparable password protected online data system
requiring user identification and a confidentiality acknowledgement (a “Confidential Datasite”), within 15 days of the filing
date that would be applicable to a non-accelerated filer at that time pursuant to applicable SEC rules and regulations, the quarterly
and audited annual financial statements and accompanying disclosure described in Item 303 of Regulation S-K (“management’s
discussion and analysis of financial condition and results of operations”) that would be required to be contained in annual reports
on Form 10-K and quarterly reports on Form 10-Q, respectively, required to be filed with the SEC if the Guarantor were subject to Section
13(a) or 15(d) of the Exchange Act. If the Guarantor elects to furnish such reports via a Confidential Datasite, access to the Confidential
Datasite will be provided promptly upon request to Holders and beneficial owners of, and bona fide potential investors in, the Securities
as well as securities analysts and market makers and no such request for access to the Confidential Datasite will be unreasonably denied.
Any such report, information or document that the
Guarantor files with or furnishes to the SEC through the EDGAR shall be deemed filed with the Trustee for purposes of Section 10.02(a)
and (b) this Indenture at the time of such filing or furnishing through EDGAR. Delivery of such reports, information and documents to
the Trustee is for informational purposes only, and the Trustee’s receipt of such will not constitute actual or constructive notice
or knowledge of any information contained therein or determinable from information contained therein, including the Issuer’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate).
Section 10.03 Securityholders’ Lists. The Issuer covenants and agrees that it will furnish or cause to be furnished to the Trustee:
(a) semi-annually,
within 15 days after each Record Date, but in any event not less frequently than semi-annually, a list in such form as the Trustee may
reasonably require of the names and addresses of the Holders of Securities to which such Record Date applies, as of such Record Date,
and
(b) at
such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list is furnished;
provided, however, that so long as the Trustee shall be the Registrar,
such lists shall not be required to be furnished.
Article
XI
CONCERNING THE TRUSTEE
Section 11.01 Rights
of Trustees; Compensation and Indemnity. The Trustee accepts the trusts created by this Indenture upon the terms and conditions hereof,
including the following, all of which the parties hereto and the Holders from time to time of the Securities agree:
(a) The Trustee shall be entitled to such compensation from the Issuer as the Issuer and the Trustee shall from time to time agree
in writing for all services rendered by it hereunder (including in any agent capacity in which it acts). The compensation of the Trustee
shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust. The Issuer shall reimburse
the Trustee promptly upon its request for all out-of-pocket expenses, disbursements and advances incurred or made by the Trustee (including
the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as shall be determined
to have been caused by its own negligence or willful misconduct.
The Issuer also agrees to indemnify each of the
Trustee and any predecessor Trustee hereunder for, and to hold it harmless against, any and all loss, liability, damage, claim, or expense
incurred without its own negligence, bad faith or willful misconduct, arising out of or in connection with the acceptance or administration
of the trust or trusts hereunder and the performance of its duties (including in any agent capacity in which it acts), as well as the
costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers
or duties hereunder, except those determined to have been caused by its own negligence or willful misconduct. The Trustee shall notify
the Issuer promptly of any claim of which a Responsible Officer has received written notice for which it may seek indemnity. The Issuer
shall defend the claim and the Trustee shall cooperate in the defense. The Trustee may have one separate counsel of its selection and
the Issuer shall pay the reasonable fees and expenses of such counsel. The Issuer need not pay for any settlement made without its consent,
which consent shall not be unreasonably withheld.
As security for the performance of the obligations
of the Issuer under this Section 11.01(a), the Trustee shall have a lien upon all property and funds held or collected by the Trustee
as such, except funds held in trust by the Trustee to pay principal of and premium, if any, and interest on any Securities. Notwithstanding
any provisions of this Indenture to the contrary, the obligations of the Issuer to compensate and indemnify the Trustee under this Section
11.01(a) shall survive the resignation or removal of the Trustee, the termination of this Indenture and any satisfaction and discharge
under Article XII. When the Trustee incurs expenses or renders services after an Event of Default specified in clause (e) or (f) of Section
7.01 occurs, the expenses and compensation for the services are intended to constitute expenses of administration under any applicable
federal or state bankruptcy, insolvency or similar laws.
(b) The Trustee may execute any of the trusts or powers hereof and perform any duty hereunder either directly or by its agents and
attorneys and shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(c) The
Trustee shall not be responsible in any manner whatsoever for the correctness of the recitals herein or in the Securities (except its
certificates of authentication thereon) contained, all of which are made solely by the Obligors; and the Trustee shall not be responsible
or accountable in any manner whatsoever for or with respect to the validity or execution or sufficiency of this Indenture or of the Securities
(except its certificates of authentication thereon), and the Trustee makes no representation with respect thereto, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations
hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Issuer are true and accurate,
subject to the qualifications set forth therein. The Trustee shall not be accountable for the use or application by the Issuer of any
Securities, or the proceeds of any Securities, authenticated and delivered by the Trustee in conformity with the provisions of this Indenture.
(d) The
Trustee may consult with counsel of its selection, and any advice of counsel shall be full and complete authorization and protection
in respect of any action taken or suffered by the Trustee hereunder in good faith and in accordance with such advice of counsel.
(e) The
Trustee may rely upon the certificate of the Secretary or one of the Assistant Secretaries of the Issuer as to the adoption of any Board
Resolution or resolution of the stockholders of the Issuer, and any request, direction, order or demand of the Issuer mentioned herein
shall be sufficiently evidenced by, and whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee may rely upon, an Officer’s Certificate
of the Issuer or the Guarantor (unless other evidence in respect thereof be herein specifically prescribed).
(f) The
Trustee or any agent of the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject
to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Issuer with the same rights it would have had if it
were not the Trustee or such agent.
(g) Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The
Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the
Issuer.
(h) Any
action taken by the Trustee pursuant to any provision hereof at the request or with the consent of any Person who at the time is the
Holder of any Security shall be conclusive and binding in respect of such Security upon all future Holders thereof or of any Security
or Securities which may be issued for or in lieu thereof in whole or in part, whether or not such Security shall have noted thereon the
fact that such request or consent had been made or given.
(i) The
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond, debenture or other paper or document reasonably believed
by it to be genuine and to have been signed or presented by the proper party or parties.
(j) The
Trustee shall not be under any obligation to exercise any of the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders of the Securities, pursuant to any provision of this Indenture, unless one or more of the
Holders of the Securities shall have offered to the Trustee security or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which may be incurred by it therein or thereby.
(k) The
Trustee shall not be liable for any action taken or omitted by it in good faith and believed by it to be authorized or within its discretion
or within the rights or powers conferred upon it by this Indenture.
(l) The
Trustee shall not be deemed to have knowledge or notice of any Default or Event of Default unless a Responsible Officer has received
written notice thereof from the Issuer or a Guarantor or unless the Issuer or the Holders of not less than 25% of the Outstanding Securities
of any series notify the Trustee thereof.
(m) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of Debt or other paper
or document, but the Trustee, may, but shall not be required to, make further inquiry or investigation into such facts or matters as it
may see fit.
(n) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
(o) In no event shall the Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(p) In
no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising
out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents,
acts of war or terrorism, civil or military disturbances, pandemics or epidemics, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that
the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as
soon as practicable under the circumstances.
(q) The Trustee may request that the Issuer deliver a certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture.
Section 11.02
Duties of Trustee.
(a) If
one or more of the Events of Default specified in Section 7.01 with respect to the Securities of any series shall have happened, then,
during the continuance thereof, the Trustee shall, with respect to such Securities, exercise such of the rights and powers vested in
it by this Indenture, and shall use the same degree of care and skill in their exercise, as a prudent person would exercise or use under
the circumstances in the conduct of such person’s own affairs.
(b) None
of the provisions of this Indenture shall be construed as relieving the Trustee from liability for its own negligent action, negligent
failure to act, or its own willful misconduct, except that, anything in this Indenture contained to the contrary notwithstanding,
(i)
unless and until an Event of Default specified in Section 7.01 with respect to the Securities of any series shall have happened
which at the time is continuing,
(A)
the Trustee undertakes to perform such duties and only such duties with respect to the Securities of that series as are specifically
set out in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee, whose duties
and obligations shall be determined solely by the express provisions of this Indenture; and
(B)
the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, in
the absence of bad faith on the part of the Trustee, upon certificates and opinions furnished to it pursuant to the express provisions
of this Indenture; but in the case of any such certificates or opinions which, by the provisions of this Indenture, are specifically required
to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts, statements,
opinions or conclusions stated therein);
(ii)
the Trustee shall not be liable to any Holder of Securities or to any other Person for any error of judgment made in good faith
by a Responsible Officer or Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii)
the Trustee shall not be liable to any Holder of Securities or to any other Person with respect to any action taken or omitted
to be taken by it in good faith, in accordance with the direction of Securityholders given as provided in Section 7.06, relating to the
time, method and place of conducting any proceeding for any remedy available to it or exercising any trust or power conferred upon it
by this Indenture.
(c)
None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.
(d)
Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of this Section 11.02.
Section 11.03 Notice
of Defaults. Within 90 days after the occurrence thereof, and if known to the Trustee, the Trustee shall give to the Holders of
the Securities of a series notice of each Default or Event of Default with respect to the Securities of such series known to the
Trustee, by transmitting such notice to Holders at their addresses as the same shall then appear on the Register of the Issuer,
unless such Default shall have been cured or waived before the giving of such notice (the term “Default” being hereby
defined to be the events specified in Section 7.01, which are, or after notice or lapse of time or both would become, Events of
Default as defined in said Section). Except in the case of a Default or Event of Default in payment of the principal of, premium, if
any, or interest on any of the Securities of such series when and as the same shall become payable, or to make any sinking fund
payment as to Securities of the same series, the Trustee shall be protected in withholding such notice, if and so long as a
Responsible Officer or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities of such series.
Section 11.04 Eligibility;
Disqualification.
(a) The
Trustee shall at all times satisfy the requirements of TIA Section 310(a). The Trustee shall have a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of condition, and shall have a Corporate Trust Office. If at
any time the Trustee shall cease to be eligible in accordance with the provisions of this Section 11.04, it shall resign immediately
in the manner and with the effect hereinafter specified in this Article.
(b) The
Trustee shall comply with TIA Section 310(b); provided, however, that there shall be excluded from the operation of TIA Section 310(b)(i)
any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Issuer
are outstanding if the requirements for such exclusion set forth in TIA Section 310(b)(i) are met. If the Trustee has or shall acquire
a conflicting interest within the meaning of Section 310(b) of the Trust Indenture Act, the Trustee shall either eliminate such interest
or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
If Section 310(b) of the Trust Indenture Act is amended any time after the date of this Indenture to change the circumstances under which
a Trustee shall be deemed to have a conflicting interest with respect to the Securities of any series or to change any of the definitions
in connection therewith, this Section 11.04 shall be automatically amended to incorporate such changes.
Section 11.05
Resignation and Notice; Removal. The Trustee, or any successor to it hereafter appointed, may at any time resign and be
discharged of the trusts hereby created with respect to any one or more or all series of Securities by giving to the Issuer notice in
writing. Such resignation shall take effect upon the appointment of a successor Trustee and the acceptance of such appointment by such
successor Trustee. Any Trustee hereunder may be removed with respect to any series of Securities at any time by the filing with such Trustee
and the delivery to the Issuer of an instrument or instruments in writing signed by the Holders of a majority in principal amount of the
Securities of such series then Outstanding, specifying such removal and the date when it shall become effective.
If at any time:
(1)
the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Issuer
or by any Holder who has been a bona fide Holder of a Security for at least six months (or, if it is a shorter period, the period since
the initial issuance of the Securities of such series), or
(2)
the Trustee shall cease to be eligible under Section 11.04 and shall fail to resign after written request therefor by the
Issuer or by any Holder who has been a bona fide Holder of a Security for at least six months (or, if it is a shorter period, the period
since the initial issuance of the Securities of such series), or
(3)
the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Issuer by written notice to the
Trustee may remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section
315(e), any Securityholder who has been a bona fide Holder of a Security for at least six months (or, if it is a shorter period, the
period since the initial issuance of the Securities of such series) may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
Upon its resignation or removal, any Trustee shall
be entitled to the payment of reasonable compensation for the services rendered hereunder by such Trustee and to the payment of all reasonable
expenses incurred hereunder and all moneys then due to it hereunder. The Trustee’s rights to indemnification provided in Section
11.01(a) shall survive its resignation or removal.
Section 11.06
Successor Trustee by Appointment.
(a)
In case at any time the Trustee shall resign, or shall be removed (unless the Trustee shall be removed as provided in Section 11.05,
in which event the vacancy shall be filled as provided in said subdivision), or shall become incapable of acting, or shall be adjudged
bankrupt or insolvent, or if a receiver of the Trustee or of its property shall be appointed, or if any public officer shall take charge
or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation with respect to
the Securities of one or more series, a successor Trustee with respect to the Securities of that or those series (it being understood
that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any series) may be appointed with respect to the Securities of each
such series by the Holders of a majority in principal amount of the Securities of such series then Outstanding, by an instrument or instruments
in writing signed in duplicate by such Holders and filed, one original thereof with the Issuer and the other with the successor Trustee;
but, until a successor Trustee shall have been so appointed by the Holders of Securities of any such series as herein authorized, the
Issuer, or, in case all or substantially all the assets of the Issuer shall be in the possession of one or more custodians or receivers
lawfully appointed, or of trustees in bankruptcy or reorganization proceedings (including a trustee or trustees appointed under the provisions
of the federal bankruptcy laws, as now or hereafter constituted), or of assignees for the benefit of creditors, such receivers, custodians,
trustees or assignees, as the case may be, by an instrument in writing, shall appoint a successor Trustee with respect to the Securities
of such series. Subject to the provisions of Sections 11.04 and 11.05, upon the appointment as aforesaid of a successor Trustee with respect
to the Securities of any series, the Trustee with respect to the Securities of such series shall cease to be Trustee hereunder. After
any such appointment other than by the Holders of Securities of any series, the Person making such appointment shall forthwith cause notice
thereof to be mailed to the Holders of Securities of such series at their addresses as the same shall then appear on the Register of the
Issuer but any successor Trustee with respect to the Securities of such series so appointed shall, immediately and without further act,
be superseded by a successor Trustee appointed by the Holders of Securities of such series in the manner above prescribed, if such appointment
be made prior to the expiration of one year from the date of the mailing of such notice by the Issuer, or by such receivers, trustees
or assignees.
(b)
If any Trustee with respect to the Securities of any series shall resign or be removed and a successor Trustee shall not have been
appointed by the Issuer or by the Holders of the Securities of such series or, if any successor Trustee so appointed shall not have accepted
its appointment within 30 days after such appointment shall have been made, the resigning Trustee at the expense of the Issuer may apply
to any court of competent jurisdiction for the appointment of a successor Trustee. If in any other case a successor Trustee shall not
be appointed pursuant to the foregoing provisions of this Section 11.06 within three months after such appointment might have been made
hereunder, the Holder of any Security of the applicable series or any retiring Trustee at the expense of the Issuer may apply to any court
of competent jurisdiction to appoint a successor Trustee. Such court may thereupon, in any such case, after such notice, if any, as such
court may deem proper and prescribe, appoint a successor Trustee.
(c)
Any successor Trustee appointed hereunder with respect to the Securities of one or more series shall execute, acknowledge and
deliver to its predecessor Trustee and to the Issuer and the Guarantor, or to the receivers, trustees, assignees or court appointing it,
as the case may be, an instrument accepting such appointment hereunder, and thereupon such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations with respect
to such series of such predecessor Trustee with like effect as if originally named as Trustee hereunder, and such predecessor Trustee,
upon payment of its charges and disbursements then unpaid, shall thereupon become obligated to pay over, and such successor Trustee shall
be entitled to receive, all moneys and properties held by such predecessor Trustee as Trustee hereunder with respect to the Securities
of such series, subject nevertheless to its lien provided for in Section 11.01(a). Nevertheless, on the written request of the Issuer
or of the successor Trustee or of the Holders of at least 10% in principal amount of the Securities of any such series then Outstanding,
such predecessor Trustee, upon payment of its said charges and disbursements, shall execute and deliver an instrument transferring to
such successor Trustee upon the trusts herein expressed all the rights, powers and trusts of such predecessor Trustee with respect to
the Securities of such series and shall assign, transfer and deliver to the successor Trustee all moneys and properties held by such predecessor
Trustee with respect to the Securities of such series, subject nevertheless to its lien provided for in Section 11.01(a); and, upon request
of any such successor Trustee or the Issuer, shall make, execute, acknowledge and deliver any and all instruments in writing for more
fully and effectually vesting in and confirming to such successor Trustee all such authority, rights, powers, trusts, immunities, duties
and obligations.
Section 11.07
Successor Trustee by Merger. Any Person into which the Trustee or any successor to it in the trusts created by this Indenture
shall be merged or converted, or any Person with which it or any successor to it shall be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee or any such successor to it shall be a party, or any Person to which the Trustee
or any successor to it shall sell or otherwise transfer all or substantially all of the corporate trust business of the Trustee, shall
be the successor Trustee under this Indenture without the execution or filing of any paper or any further act on the part of any of the
parties hereto; provided that such Person shall be otherwise qualified and eligible under this Article. In case at the time such successor
to the Trustee shall succeed to the trusts created by this Indenture with respect to one or more series of Securities, any of such Securities
shall have been authenticated but not delivered by the Trustee then in office, any successor to such Trustee may adopt the certificate
of authentication of any predecessor Trustee, and deliver such Securities so authenticated; and in case at that time any of the Securities
shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases such certificates shall have the full force which it is anywhere
in the Securities or in this Indenture provided that the certificate of the Trustee shall have; provided, however, that the right to adopt
the certificate of authentication of any predecessor Trustee or authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
Section 11.08
Right to Rely on Officer’s Certificate. Whenever in the administration of the provisions of this Indenture the Trustee
shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter
(unless other evidence in respect thereof be herein specifically prescribed) may, in the absence of negligence, bad faith or willful misconduct
on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate with respect thereto
delivered to the Trustee, and such Officer’s Certificate, in the absence of negligence, bad faith or willful misconduct on the part
of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture
upon the faith thereof.
Section 11.09 Appointment of Authenticating Agent. The Trustee may appoint an agent (the “Authenticating Agent”) acceptable to the
Issuer to authenticate the Securities, and the Trustee shall give written notice of such appointment to all Holders of Securities of
the series with respect to which such Authenticating Agent will serve. Unless limited by the terms of such appointment, any such Authenticating
Agent may authenticate Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes
authentication by the Authenticating Agent. Securities so authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee hereunder.
Each Authenticating Agent shall at all times be
a corporation organized and doing business and in good standing under the laws of the United States, any State thereof or the District
of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000
and subject to supervision or examination by Federal or State authority. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Article XI, the combined
capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Article XI, it shall resign immediately in the manner and with the effect specified in this Article XI.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business
of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under
this Article XI, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time
by giving written notice thereof to the Trustee and to the Obligors. The Trustee may at any time terminate the agency of an Authenticating
Agent by giving written notice thereof to such Authenticating Agent and to the Obligors. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section 11.09, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuer and shall give
written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve.
Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall
be appointed unless eligible under the provisions of this Section 11.09.
The Issuer agrees to pay to each Authenticating
Agent from time to time reasonable compensation for its services under this Section 11.09.
Section 11.10
Communications by Securityholders with Other Securityholders. Holders of Securities may communicate pursuant to Section
312(b) of the Trust Indenture Act with other Holders with respect to their rights under this Indenture or the Securities. The Issuer,
the Trustee, the Registrar and anyone else shall have the protection of Section 312(c) of the Trust Indenture Act with respect to such
communications.
Section 11.11 FATCA.
The Issuer agrees (i) to provide the Trustee with such reasonable information as it has in its possession to enable the Trustee to
determine whether any payments pursuant to the Indenture are subject to the withholding requirements described in Section 1471(b) of
the US Internal Revenue Code of 1986 (the “Code”) or otherwise imposed pursuant to Sections 1471 through 1474 of the
Code and any regulations, or agreements thereunder or official interpretations thereof (“Applicable Law”), and (ii) that
the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to
comply with Applicable Law, for which the Trustee shall not have any liability.
Article
XII
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 12.01
Applicability of Article. The provisions of this Article shall be applicable to the Securities of all series issued pursuant
to this Indenture, except as otherwise specified pursuant to Section 3.01 for Securities of any particular series of Securities.
Section 12.02
Satisfaction and Discharge of Indenture. This Indenture, with respect to the Securities of any series (if all series issued
under this Indenture are not to be affected), shall, upon Issuer Order, cease to be of further effect (except as to any surviving rights
of registration of transfer or exchange of such Securities herein expressly provided for and the rights of the Holders of the Securities
of such series to receive, the principal of and premium, if any, and interest on such Securities as and when the same shall become due
and payable and except as otherwise provided in the last paragraph of this Section 12.02), and the Trustee, at the expense of the Issuer,
shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Securities of such series,
when,
(a)
either:
(i)
all Securities of such series theretofore authenticated and delivered (other than (A) Securities that have been destroyed, lost
or stolen and that have been replaced or paid as provided in Section 3.07 and (B) Securities for whose payment money has theretofore been
deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, as
provided in Section 6.03(e)) have been delivered to the Trustee for cancellation; or
(ii) all
Securities of such series not theretofore delivered to the Trustee for cancellation,
(A)
have become due and payable, or
(B)
will become due and payable at their Stated Maturity within one year, or
(C)
if redeemable at the option of the Issuer (including, without limitation, by operation of any mandatory sinking fund), are to be
called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Issuer,
and the Issuer, in the case of
(A), (B) or (C) above, has irrevocably deposited or caused to be deposited with the Trustee funds in trust for the purpose an amount
in cash in the Currency in which such Securities are payable (subject to Section 12.08) sufficient to pay and discharge the entire
indebtedness on such Securities for principal and premium, if any, and interest to the date of such deposit (in the case of
Securities that have become due and payable) or to the Stated Maturity thereof or, in the case of Securities of such series which
are to be called for redemption as contemplated by (C) above, the applicable Redemption Date, as the case may be, and including any
mandatory sinking fund payments as and when the same shall become due and payable; provided, however, that, if a Default of the
nature described in clauses (e) or (f) of Section 7.01 shall have occurred at any time during the period ending on and including the
91st day after the date of such deposit or if the Trustee or any Paying Agent is required to return the monies then on deposit with
or held by the Trustee or such Paying Agent to the Issuer or to a trustee in bankruptcy, receiver, conservator or other similar
Person, or the Trustee or any Paying Agent is not permitted to apply any such funds to pay the principal of and premium, if any, and
interest on the Securities of such series (including to make sinking fund payments) as and when the same shall become due and
payable, the obligations of the Obligors under this Indenture with respect to such Securities shall not be deemed terminated or
discharged;
(b)
the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer with respect to the Securities of such
series; and
(c)
the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to the Securities of any series, the obligations of the Issuer to the Trustee under Section 11.01, the provisions of Sections
3.04, 3.05, 3.06, 3.07, 6.02 and 6.03 and this Article XII, and, if the Securities of such series are to be redeemed prior to their Stated
Maturity (including, without limitation, pursuant to a mandatory sinking fund), the provisions of Article IV hereof, and, if the Securities
of such series are convertible into or exchangeable for other securities or property, the rights of the Holders of such Securities to
convert or exchange, and the obligations of the Issuer to convert or exchange, such Securities into other securities or property, and,
if money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the obligations of the Trustee under Section
12.07 and Section 6.03(e) shall survive such satisfaction and discharge. At such time as satisfaction and discharge of this Indenture
shall be effective with respect to the Securities of a particular series, the Guarantor will be released from its Guarantees of the Securities
of such series.
Section 12.03
Defeasance and Covenant Defeasance upon Deposit of Moneys or U.S. Government Obligations. At the Issuer’s option,
either (x) the Obligors shall be deemed to have been Discharged (as defined below) from their respective obligations with respect to Securities
of any series on the first day after the applicable conditions set forth below have been satisfied, including, with respect to the Guarantor,
release from its Guarantees of the Securities of such series or (y) the Obligors shall cease to be under any obligation to comply with
any term, provision or condition set forth in Section 6.08 or Section 10.02 with respect to Securities of any series (and, if so specified
pursuant to Section 3.01, any other restrictive covenant added for the benefit of such series pursuant to Section 3.01) but, except as
specified above, the remainder of this Indenture, the Securities of such series and the related Guarantees shall be unaffected thereby
(“covenant defeasance”) upon the satisfaction of the applicable conditions set forth below:
(a) the
Issuer shall have deposited or caused to be deposited irrevocably with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the Securities of such series (i) money in the Currency in
which such Securities are payable in an amount, or (ii) U.S. Government Obligations (as defined below) that, through the payment of
interest and principal in respect thereof in accordance with their terms, will provide, not later than one day before the due date
of any payment, money in the Currency in which such Securities are payable in an amount, or (iii) a combination of (i) and (ii),
sufficient (without consideration of any reinvestment of such principal and interest) to pay and discharge each installment of
principal (including any mandatory sinking fund payments) of and premium, if any, and interest on, the Outstanding Securities of
such series on the dates such installments of interest or principal and premium are due and, if the Securities of such series are to
be called for redemption as described in clause (d) below, to pay and discharge the Redemption Price on the Securities called for
redemption on the applicable Redemption Date;
(b)
no Default with respect to the Securities of such series shall have occurred and be continuing on the date of such deposit (other
than a Default resulting from the borrowing of funds and the grant of any related liens to be applied to such deposit) and, solely in
the case of Discharge pursuant to clause (x) of the first paragraph of this Section 12.03, no Default with respect to the Securities of
such series under either clause (e) or (f) of Section 7.01 shall have occurred at any time during the period ending on and including the
91st day after the date of such deposit;
(c)
the Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such series
will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the Issuer’s exercise of its option
under this Section 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 option had not been exercised and, in the case of the Securities of such series being Discharged pursuant to
clause (x) of the first paragraph of this Section 12.03, such Opinion of Counsel shall be based upon and accompanied by a ruling to that
effect received by the Issuer from or published by the Internal Revenue Service;
(d)
if the monies or U.S. Government Obligations or combination thereof, as the case may be, deposited under clause (a) above are sufficient
to pay the principal of and premium, if any, and interest on the Securities of such series (including, without limitation, any mandatory
sinking fund payment) or any portion thereof to be redeemed on a particular Redemption Date (including, without limitation, pursuant to
a mandatory sinking fund), the Issuer shall have given to the Trustee irrevocable instructions to redeem such Securities on such date
and shall have made arrangements satisfactory to the Trustee for the giving of notice of such redemption by the Trustee in the name, and
at the expense, of the Issuer; and
(e)
the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all
conditions precedent to such action under this Indenture have been complied with.
“Discharged” means, with respect to
the Securities of any series, that the Obligors shall be deemed to have paid and discharged the entire indebtedness represented by, and
obligations under, the Securities of such series and to have satisfied all the obligations under this Indenture relating to the Securities
of such series (and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the
following, all of which shall survive such Discharge and remain in full force and effect with respect to the Securities of such series:
(A) the rights of Holders of Securities of such series to receive, from the trust fund described in clause (a) above, payment of the principal
of and premium, if any, and interest on such Securities when such payments are due, (B) Sections 3.04, 3.05, 3.06, 3.07, 3.10, 6.02 and
6.03, (C) if the Securities of such series are to be redeemed prior to their Stated Maturity, the provisions of Article IV hereof, (D)
if the Securities of such series are convertible into or exchangeable for other securities or property, the rights of the Holders of such
Securities to convert or exchange, and the obligations of the Obligors to convert or exchange, such Securities into such other securities
or property, (E) the provisions of this Article XII and (F) the rights, powers, trusts, duties and immunities of the Trustee hereunder.
“U.S. Government Obligations” means
securities that are (i) direct obligations of the United States for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the timely of payment
of which is unconditionally guaranteed as a full faith and credit obligation by the United States, that, in either case under clauses
(i) or (ii) are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by
a bank or trust company as custodian with respect to any such U.S. Government Obligation or a specific payment of interest on or principal
of any such U.S. Government Obligation held by such custodian for the account of the holder of a depositary receipt; provided that (except
as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt
from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of interest on or principal
of the U.S. Government Obligation evidenced by such depositary receipt.
Section 12.04
Repayment to Issuer. The Trustee and any Paying Agent shall promptly pay to the Issuer (or to its designee) upon delivery
of an Officer’s Certificate any moneys or U.S. Government Obligations deposited pursuant to Section 12.03 with respect to the Securities
of any series and held by them that are in excess of the monies and/or U.S. Government Obligations that would be required to be deposited
at such time to effect the Discharge or covenant defeasance, as applicable, with respect to the Securities of such series in accordance
with Section 12.03, including any such moneys or obligations held by the Trustee under any escrow trust agreement entered into pursuant
to Section 12.06. The provisions of Section 6.03(e) shall apply to any money held by the Trustee or any Paying Agent under this Article.
Section 12.05
Indemnity for U.S. Government Obligations. The Issuer shall pay and shall indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the deposited U.S. Government Obligations or the principal or interest received on such U.S.
Government Obligations.
Section 12.06 Deposits
to Be Held in Escrow. Any deposits with the Trustee referred to in Section 12.03 above shall be irrevocable (except to the extent
provided in Sections 12.04 and 6.03(e)) and shall be made under the terms of an escrow trust agreement. If any Outstanding Securities
of a series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption provisions or in accordance
with any mandatory or optional sinking fund requirement, the applicable escrow trust agreement shall provide therefor and the Issuer
shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense, of the Issuer.
Section 12.07
Application of Trust Money.
(a)
Neither the Trustee nor any other Paying Agent shall be required to pay interest on any moneys deposited pursuant to the provisions
of this Indenture, except such as it shall agree with the Issuer in writing to pay thereon.
(b) Subject
to Section 6.03(e), any monies and U.S. Government Obligations which at any time shall be deposited by the Issuer or on its behalf
with the Trustee or any other Paying Agent for the purpose of paying the principal of, premium, if any, and interest on any of the
Securities shall be and are hereby assigned, transferred and set over to the Trustee or such other Paying Agent in trust for the
respective Holders of the Securities for the purpose for which such moneys shall have been deposited, and such funds shall be
applied by the Trustee or Paying Agent in accordance with the provisions of such Securities and this Indenture to the payment of all
sums due and to become due on such Securities in respect of principal and premium, if any, and interest; but such moneys need not be
segregated from other funds except to the extent required by law. Anything in this Indenture to the contrary notwithstanding, none
of the Issuer, the Guarantor or any of their respective Subsidiaries or Affiliates may act as Paying Agent for any Securities in
respect of which money or U.S. Government Obligations have been deposited pursuant to this Article XII.
Section 12.08
Deposits of Non-U.S. Currencies. Notwithstanding the foregoing provisions of this Article, if the Securities of any series
are payable in a Currency other than U.S. Dollars, the Currency or the nature of the government obligations to be deposited with the Trustee
under the foregoing provisions of this Article shall be as set forth in the Officer’s Certificate or established in the supplemental
indenture under which the terms of the Securities of such series have been established pursuant to Section 3.01.
Article
XIII
IMMUNITY OF CERTAIN PERSONS
Section 13.01
No Personal Liability. No recourse shall be had for the payment of the principal of, or the premium, if any, or interest
on, any Security or for any claim based thereon or otherwise in respect thereof or of the Debt represented thereby, or upon any obligation,
covenant or agreement of this Indenture, against any incorporator, stockholder, officer or director, as such, past, present or future,
of the applicable Obligor or of any successor corporation, either directly or through such Obligor or any successor corporation, whether
by virtue of any constitutional provision, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly agreed and understood that this Indenture and the Securities are solely corporate obligations, and that no personal liability
whatsoever shall attach to, or be incurred by, any incorporator, stockholder, officer or director, as such, past, present or future, of
such Obligor or of any successor corporation, either directly or through such Obligor or any successor corporation, because of the incurring
of the Debt hereby authorized or under or by reason of any of the obligations, covenants, promises or agreements contained in this Indenture
or in any of the Securities, or to be implied herefrom or therefrom, and that all liability, if any, of that character against every such
incorporator, stockholder, officer and director is, by the acceptance of the Securities and as a condition of, and as part of the consideration
for, the execution of this Indenture and the issue of the Securities expressly waived and released.
Article
XIV
SUPPLEMENTAL INDENTURES
Section 14.01
Without Consent of Securityholders. Except as otherwise provided as contemplated by Section 3.01 with respect to any series
of Securities, the Issuer, the Guarantor, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any one or more of or all the following purposes:
(a)
to add to the covenants and agreements of the Obligors, to be observed thereafter and during the period, if any, in such supplemental
indenture or indentures expressed, and to add Events of Default, in each case for the protection or benefit of the Holders of all or any
series of the Securities (and if such covenants, agreements and Events of Default are to be for the benefit of fewer than all series of
Securities, stating that such covenants, agreements and Events of Default are expressly being included for the benefit of such series
as shall be identified therein), or to surrender any right or power herein conferred upon the Obligors;
(b) to
delete or modify any Events of Default with respect to any series of the Securities, the form and terms of which are first being
established pursuant to such supplemental indenture as permitted in Section 3.01 (and, if any such Event of Default is applicable to
fewer than all such series of the Securities, specifying the series to which such Event of Default is applicable), and to specify
the rights and remedies of the Trustee and the Holders of such Securities in connection therewith, provided that such supplemental
indenture shall not apply to any Outstanding Security of any series created prior to the date of such supplemental indenture;
(c)
to change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective
only when there is no Outstanding Security of any series created prior to the execution of such supplemental indenture that is entitled
to the benefit of such provision and as to which such supplemental indenture would apply;
(d)
to evidence the succession of another entity to the Issuer, or successive successions, and the assumption by such successor of
the covenants and obligations of the Issuer contained in the Securities of one or more series and in this Indenture or any supplemental
indenture;
(e)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to one or more series of
Securities and to add to or change any of the provisions of this Indenture as shall be necessary for or facilitate the administration
of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 11.06(c);
(f)
to secure any series of Securities;
(g)
to evidence any changes to this Indenture pursuant to Sections 11.05, 11.06 or 11.07 hereof as permitted by the terms thereof;
(h)
to cure any ambiguity or inconsistency or to correct or supplement any provision contained herein or in any indenture supplemental
hereto which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture or to conform
the terms hereof, as amended and supplemented, that are applicable to the Securities of any series to the description of the terms of
such Securities in the offering memorandum, prospectus supplement or other offering document applicable to such Securities at the time
of initial sale thereof;
(i)
to add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments
to the Trust Indenture Act;
(j)
to evidence the succession of another Person to the Guarantor and the assumption by any such successor of the covenants of the
Guarantor herein and in the Securities or to add guarantors or co-obligors with respect to any series of Securities or to release guarantors
from their guarantees of Securities in accordance with the terms of the applicable series of Securities;
(k)
to make any change in any series of Securities that does not adversely affect in any material respect the rights of the Holders
of such Securities;
(l)
to provide for uncertificated securities in addition to certificated securities;
(m)
to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities; provided that any such action shall not adversely affect the interests of the Holders of Securities
of such series or any other series of Securities;
(n)
to prohibit the authentication and delivery of additional series of Securities; or
(o) to
establish the form and terms of Securities of any series as permitted in Section 3.01, or to authorize the issuance of additional
Securities of a series previously authorized or to add to the conditions, limitations or restrictions on the authorized amount,
terms or purposes of issue, authentication or delivery of the Securities of any series, as herein set forth, or other conditions,
limitations or restrictions thereafter to be observed.
Subject to the provisions of Section 14.03, the
Trustee is authorized to join with the Issuer and the Guarantor in the execution of any such supplemental indenture, to make the further
agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property or assets thereunder.
Any supplemental indenture authorized by the provisions
of this Section 14.01 may be executed by the Issuer, the Guarantor and the Trustee without the consent of the Holders of any of the Securities
at the time Outstanding.
Section 14.02
With Consent of Securityholders; Limitations.
(a)
With the consent of the Holders (evidenced as provided in Article VIII) of a majority in aggregate principal amount of the Outstanding
Securities of each series affected by such supplemental indenture voting separately, the Issuer, the Guarantor and the Trustee may, from
time to time and at any time, enter into an indenture or indentures supplemental hereto or any applicable Guarantee for the purpose of
adding any provisions to or changing in any manner or eliminating any provisions of this Indenture or any applicable Guarantee or of modifying
in any manner the rights of the Holders of the Securities of such series to be affected; provided, however, that no such supplemental
indenture shall, without the consent of the Holder of each Outstanding Security of each such series affected thereby,
(i)
extend the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount
thereof or the interest thereon or any premium thereon, or extend the Stated Maturity of, or change the place of payment where, or the
Currency in which the principal of and premium, if any, or interest on such Security is denominated or payable, or reduce the amount of
the principal of an Original Issue Discount Security that would be due and payable upon acceleration of the Maturity thereof pursuant
to Section 7.02, change the ranking of any Security or, in the case of any subordinated Security, the definition of Senior Debt applicable
thereto, or impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or materially adversely affect the economic terms of any right to convert or exchange
any Security as may be provided pursuant to Section 3.01; or
(ii)
reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required
for any supplemental indenture, or the consent of whose Holders is required for any waiver of compliance with certain provisions of this
Indenture or certain Defaults hereunder and their consequences provided for in this Indenture, or reduce the requirements under Article
IX for quorum or voting; or
(iii)
modify any of the provisions of this Section, Section 7.06 or Section 6.06, except to increase any such percentage or to provide
that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes
in the references to “the Trustee” and concomitant changes in this Section and Section 6.06, or the deletion of this proviso,
in accordance with the requirements of Sections 11.06 and 14.01(f); or
(iv)
modify or affect in any manner adverse to the Holders of the Securities the terms and conditions of the obligations of the Guarantor
in respect of the payments of principal and premium, if any, and Interest; or
(v)
modify, without the written consent of the Trustee, the rights, duties or immunities of the Trustee; or
(vi)
make any change that adversely affects the right, if any, to convert or exchange any Security for other securities or property
in accordance with its terms.
(b)
A supplemental indenture that changes or eliminates any provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities or which modifies the rights of the Holders of Securities of such series with
respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities
of any other series.
(c)
It shall not be necessary for the consent of the Securityholders under this Section 14.02 to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
(d)
The Issuer may set a record date for purposes of determining the identity of the Holders of each series of Securities entitled
to give a written consent or waive compliance by the Issuer as authorized or permitted by this Section. Such record date shall not be
more than 30 days prior to the first solicitation of such consent or waiver or the date of the most recent list of Holders furnished to
the Trustee prior to such solicitation pursuant to Section 312 of the Trust Indenture Act.
(e)
Promptly after the execution by the Issuer, the Guarantor and the Trustee of any supplemental indenture pursuant to the provisions
of this Section 14.02, the Issuer shall mail a notice, setting forth in general terms the substance of such supplemental indenture, to
the Holders of Securities at their addresses as the same shall then appear in the Register of the Issuer. Any failure of the Issuer to
mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 14.03
Trustee Protected. Upon the request of the Issuer, accompanied by the Officer’s Certificate and Opinion of Counsel
required by Section 17.01 (and stating that such supplemental indenture is authorized or permitted by this Indenture) and evidence reasonably
satisfactory to the Trustee of consent of the Holders if the supplemental indenture is to be executed pursuant to Section 14.02, the Trustee
shall join with the Issuer in the execution of said supplemental indenture unless said supplemental indenture affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into said supplemental indenture. The Trustee shall be fully protected in relying upon such Officer’s Certificate
and an Opinion of Counsel.
Section 14.04 Effect
of Execution of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions of this
Article XIV, this Indenture shall be deemed to be modified and amended in accordance therewith and, except as herein otherwise
expressly provided, the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the
Trustee, the Obligors and the Holders of all of the Securities or of the Securities of any series affected, as the case may be,
shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and
all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of
this Indenture for any and all purposes.
Section 14.05
Notation on or Exchange of Securities. Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to the provisions of this Article may bear a notation in the form approved by the Trustee as to any matter provided
for in such supplemental indenture. If the Issuer or the Trustee shall so determine, new Securities so modified as to conform, in the
opinion of the Trustee and the Board of Directors of the Issuer, to any modification of this Indenture contained in any such supplemental
indenture may be prepared and executed by the Obligors and authenticated and delivered by the Trustee in exchange for the Securities then
Outstanding in equal aggregate principal amounts, and such exchange shall be made without cost to the Holders of the Securities.
Section 14.06
Conformity with TIA. Every supplemental indenture executed pursuant to the provisions of this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
Article
XV
SUBORDINATION OF SECURITIES
Section 15.01 Agreement
to Subordinate. In the event a series of Securities is designated as subordinated pursuant to Section 3.01, and except as otherwise
provided in an Officer’s Certificate or in one or more indentures supplemental hereto, the Issuer, for itself, its successors and
assigns, covenants and agrees, and each Holder of Securities of such series by his, her or its acceptance thereof, likewise covenants
and agrees, that the payment of the principal of (and premium, if any) and interest, if any, on each and all of the Securities of such
series is hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment
in full of all Senior Debt. In the event a series of Securities is not designated as subordinated pursuant to Section 3.01(s), this Article
XV shall have no effect upon the Securities.
Section 15.02 Distribution
on Dissolution, Liquidation and Reorganization; Subrogation of Securities. Subject to Section 15.01, upon any distribution of assets
of the Issuer upon any dissolution, winding up, liquidation or reorganization of the Issuer, whether in bankruptcy, insolvency, reorganization
or receivership proceedings or upon an assignment for the benefit of creditors or any other marshalling of the assets and liabilities
of the Issuer or otherwise (subject to the power of a court of competent jurisdiction to make other equitable provision reflecting the
rights conferred in this Indenture upon the Senior Debt and the holders thereof with respect to the Securities and the Holders thereof
by a lawful plan of reorganization under applicable bankruptcy law):
(a)
the holders of all Senior Debt shall be entitled to receive payment in full of the principal thereof (and premium, if any) and
interest due thereon before the Holders of the Securities are entitled to receive any payment upon the principal (or premium, if any)
or interest, if any, on Debt evidenced by the Securities; and
(b) any
payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee would be entitled except for the provisions of this Article XV shall be paid by the
liquidation trustee or agent or other Person making such payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior Debt or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments evidencing any of such Senior Debt may have been issued, ratably
according to the aggregate amounts remaining unpaid on account of the principal of (and premium, if any) and interest on the Senior
Debt held or represented by each, to the extent necessary to make payment in full of all Senior Debt remaining unpaid, after giving
effect to any concurrent payment or distribution to the holders of such Senior Debt; and
(c)
in the event that, notwithstanding the foregoing, any payment or distribution of assets of the Issuer of any kind or character,
whether in cash, property or securities prohibited by the foregoing, shall be received by the Trustee or the Holders of the Securities
before all Senior Debt is paid in full, such payment or distribution shall be paid over, upon written notice to a Responsible Officer
of the Trustee, to the holder of such Senior Debt or his, her or its representative or representatives or to the trustee or trustees under
any indenture under which any instrument evidencing any of such Senior Debt may have been issued, ratably as aforesaid, as calculated
by the Issuer, for application to payment of all Senior Debt remaining unpaid until all such Senior Debt shall have been paid in full,
after giving effect to any concurrent payment or distribution to the holders of such Senior Debt.
(d)
Subject to the payment in full of all Senior Debt, the Holders of the Securities shall be subrogated to the rights of the holders
of Senior Debt (to the extent that distributions otherwise payable to such Holders have been applied to the payment of Senior Debt) to
receive payments or distributions of cash, property or securities of the Issuer applicable to Senior Debt until the principal of (and
premium, if any) and interest, if any, on the Securities shall be paid in full and no such payments or distributions to the Holders of
the Securities of cash, property or securities otherwise distributable to the holders of Senior Debt shall, as between the Issuer, its
creditors other than the holders of Senior Debt, and the Holders of the Securities be deemed to be a payment by the Issuer to or on account
of the Securities. It is understood that the provisions of this Article XV are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities, on the one hand, and the holders of the Senior Debt, on the other hand. Nothing contained
in this Article XV or elsewhere in this Indenture or in the Securities is intended to or shall impair, as between the Issuer, its creditors
other than the holders of Senior Debt, and the Holders of the Securities, the obligation of the Issuer, which is unconditional and absolute,
to pay to the Holders of the Securities the principal of (and premium, if any) and interest, if any, on the Securities as and when the
same shall become due and payable in accordance with their terms, or to affect the relative rights of the Holders of the Securities and
creditors of the Issuer other than the holders of Senior Debt, nor shall anything herein or in the Securities prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to
the rights, if any, under this Article XV of the holders of Senior Debt in respect of cash, property or securities of the Issuer received
upon the exercise of any such remedy. Upon any payment or distribution of assets of the Issuer referred to in this Article XV, the Trustee,
subject to the provisions of Section 15.06, shall be entitled to conclusively rely upon a certificate of the liquidating trustee or agent
or other person making any distribution to the Trustee for the purpose of ascertaining the Persons entitled to participate in such distribution,
the holders of Senior Debt and other indebtedness of the Issuer, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereof and all other facts pertinent thereto or to this Article XV.
Section 15.03
No Payment on Securities in Event of Default on Senior Debt. Subject to Section 15.01, no payment by the Issuer on account
of principal (or premium, if any), sinking funds or interest, if any, on the Securities shall be made at any time if: (i) a default on
Senior Debt exists that permits the holders of such Senior Debt to accelerate its maturity and (ii) the default is the subject of judicial
proceedings or the Issuer has received notice of such default. The Issuer may resume payments on the Securities when full payment of amounts
then due for principal (premium, if any), sinking funds and interest on Senior Debt has been made or duly provided for in money or money’s
worth.
In the event that, notwithstanding the
foregoing, any payment shall be received by the Trustee when such payment is prohibited by the preceding paragraph of this Section
15.03, such payment shall be held in trust for the benefit of, and shall be paid over or delivered to, the holders of such Senior
Debt or their respective representatives, or to the trustee or trustees under any indenture pursuant to which any of such Senior
Debt may have been issued, as their respective interests may appear, as calculated by the Issuer, but only to the extent that the
holders of such Senior Debt (or their representative or representatives or a trustee) notify the Trustee in writing within 90 days
of such payment of the amounts then due and owing on such Senior Debt and only the amounts specified in such notice to the Trustee
shall be paid to the holders of such Senior Debt.
Section 15.04
Payments on Securities Permitted. Subject to Section 15.01, nothing contained in this Indenture or in any of the Securities
shall (a) affect the obligation of the Issuer to make, or prevent the Issuer from making, at any time except as provided in Sections 15.02
and 15.03, payments of principal of (or premium, if any) or interest, if any, on the Securities or (b) prevent the application by the
Trustee of any moneys or assets deposited with it hereunder to the payment of or on account of the principal of (or premium, if any) or
interest, if any, on the Securities, unless a Responsible Officer of the Trustee shall have received at its Corporate Trust Office written
notice of any fact prohibiting the making of such payment from the Issuer or from the holder of any Senior Debt or from the trustee for
any such holder, together with proof satisfactory to the Trustee of such holding of Senior Debt or of the authority of such trustee more
than two Business Days prior to the date fixed for such payment.
Section 15.05
Authorization of Securityholders to Trustee to Effect Subordination. Subject to Section 15.01, each Holder of Securities
by his acceptance thereof authorizes and directs the Trustee on his, her or its behalf to take such action as may be necessary or appropriate
to effectuate the subordination as provided in this Article XV and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 15.06 Notices
to Trustee. The Issuer shall give prompt written notice to a Responsible Officer of the Trustee of any fact known to the Issuer
that would prohibit the making of any payment of monies or assets to or by the Trustee in respect of the Securities of any series
pursuant to the provisions of this Article XV. Subject to Section 15.01, notwithstanding the provisions of this Article XV or any
other provisions of this Indenture, neither the Trustee nor any Paying Agent (other than the Issuer) shall be charged with knowledge
of the existence of any Senior Debt or of any fact which would prohibit the making of any payment of moneys or assets to or by the
Trustee or such Paying Agent, unless and until a Responsible Officer of the Trustee or such Paying Agent shall have received (in the
case of a Responsible Officer of the Trustee, at the Corporate Trust Office of the Trustee) written notice thereof from the Issuer
or from the holder of any Senior Debt or from the trustee for any such holder, together with proof satisfactory to the Trustee of
such holding of Senior Debt or of the authority of such trustee and, prior to the receipt of any such written notice, the Trustee
shall be entitled in all respects conclusively to presume that no such facts exist; provided, however, that if at least two Business
Days prior to the date upon which by the terms hereof any such moneys or assets may become payable for any purpose (including,
without limitation, the payment of either the principal (or premium, if any) or interest, if any, on any Security) a Responsible
Officer of the Trustee shall not have received with respect to such moneys or assets the notice provided for in this Section 15.06,
then, anything herein contained to the contrary notwithstanding, the Trustee shall have full power and authority to receive such
moneys or assets and to apply the same to the purpose for which they were received, and shall not be affected by any notice to the
contrary which may be received by it within two Business Days prior to such date. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt (or a trustee on behalf of such
holder) to establish that such a notice has been given by a holder of Senior Debt or a trustee on behalf of any such holder. In the
event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a
holder of Senior Debt to participate in any payment or distribution pursuant to this Article XV, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such
Person under this Article XV and, if such evidence is not furnished, the Trustee may defer any payment to such Person pending
judicial determination as to the right of such Person to receive such payment.
Section 15.07
Trustee as Holder of Senior Debt. Subject to Section 15.01, the Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article XV in respect of any Senior Debt at any time held by it to the same extent as any other holder
of Senior Debt and nothing in this Indenture shall be construed to deprive the Trustee of any of its rights as such holder. Nothing in
this Article XV shall apply to claims of, or payments to, the Trustee under or pursuant to Sections 7.05 or 11.01.
Section 15.08
Modifications of Terms of Senior Debt. Subject to Section 15.01, any renewal or extension of the time of payment of any
Senior Debt or the exercise by the holders of Senior Debt of any of their rights under any instrument creating or evidencing Senior Debt,
including, without limitation, the waiver of default thereunder, may be made or done all without notice to or assent from the Holders
of the Securities or the Trustee. To the fullest extent permitted by applicable law, no compromise, alteration, amendment, modification,
extension, renewal or other change of, or waiver, consent or other action in respect of, any liability or obligation under or in respect
of, or of any of the terms, covenants or conditions of any indenture or other instrument under which any Senior Debt is outstanding or
of such Senior Debt, whether or not such release is in accordance with the provisions of any applicable document, shall in any way alter
or affect any of the provisions of this Article XV or of the Securities relating to the subordination thereof.
Section 15.09
Reliance on Judicial Order or Certificate of Liquidating Agent. Subject to Section 15.01, upon any payment or distribution
of assets of the Issuer referred to in this Article XV, the Trustee and the Holders of the Securities shall be entitled to conclusively
rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, liquidating
trustee, custodian, receiver, assignee for the benefit of creditors, agent or other person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Debt and other indebtedness of the Issuer, the amount thereof or payable thereon, the amount or amounts
paid or distributed thereon and all other facts pertinent thereto or to this Article XV.
Section 15.10
Satisfaction and Discharge; Defeasance and Covenant Defeasance. Subject to Section 15.01, amounts and U.S. Government Obligations
deposited in trust with the Trustee pursuant to and in accordance with Article XII and not, at the time of such deposit, prohibited to
be deposited under Sections 15.02 or 15.03 shall not be subject to this Article XV.
Section 15.11
Trustee Not Fiduciary for Holders of Senior Debt. With respect to the holders of Senior Debt, the Trustee undertakes to
perform or observe only such of its covenants and obligations as are specifically set forth in this Article XV, and no implied covenants
or obligations with respect to the holders of Senior Debt shall be read into this Indenture against the Trustee. The Trustee shall not
be deemed to owe any fiduciary duty to the holders of Senior Debt. The Trustee shall not be liable to any such holder if it shall pay
over or distribute to or on behalf of Holders of Securities or the Issuer, or any other Person, moneys or assets to which any holder of
Senior Debt shall be entitled by virtue of this Article XV or otherwise.
Article
XVI
GUARANTEES
Section 16.01
Applicability of Article; Guarantee.
(a)
All Securities previously issued under the Indenture and that remain Outstanding as of February 10, 2023 shall have the benefit
of the Guarantees as set forth in this Article XVI, and, if the Issuer elects to issue any series of Securities on any date after February
10, 2023 with the benefit of the Guarantees as set forth in this Article then the provisions of this Article XVI (with such modifications
thereto as may be specified pursuant to Section 3.01 with respect to any series of Securities issued after February 10, 2023), will be
applicable to such Securities. Each reference in this Article XVI to a “Security” or “the Securities” refers to
the Securities of the particular series as to which provision has been made for such Guarantees (including, for the avoidance of doubt,
all Securities which have been previously issued under the Indenture and that remain Outstanding as of February 10, 2023). If more than
one series of Securities as to which such provision has been made are Outstanding at any time, the provisions of this Article XVI shall
be applied separately to each such series.
(b)
Subject to this Article XVI, the Guarantor fully and unconditionally guarantees to the Trustee and to each Holder of a Security
of any series issued with the benefit of Guarantees and which Security has been authenticated and delivered by the Trustee and to the
Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, such Security or the obligations
of the Issuer hereunder or thereunder, that:
(i)
the principal of, premium, if any, and interest on such Security will be promptly paid in full when due, whether at maturity, by
acceleration, redemption or otherwise, and interest on the overdue principal of and interest on such Security, if any, if lawful, and
all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder will be promptly paid in full or performed,
all in accordance with the terms hereof and thereof; and
(ii)
in case of any extension of time of payment or renewal of any Securities of that series or any of such other obligations, that
same will be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at stated maturity,
by acceleration or otherwise. Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason,
the Guarantor will be obligated to pay the same immediately. The Guarantor agrees that this is a guarantee of payment and not a guarantee
of collection.
(c)
The Guarantor hereby agrees that its obligations hereunder are unconditional, irrespective of the validity, regularity or enforceability
of the Securities of any series issued with the benefit of Guarantees or this Indenture, the absence of any action to enforce the same,
any waiver or consent by any Holder of the Securities of that series with respect to any provisions hereof or thereof, the recovery of
any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of a guarantor, other than payment in full of all obligations under the Securities of that series. The
Guarantor in respect of a series of Securities hereby waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Issuer in respect of that series, any right to require a proceeding first against the
Issuer, protest, notice and all demands whatsoever and covenants that this Guarantee will not be discharged except by complete performance
of the obligations contained in such Securities and this Indenture.
(d)
If any Holder or the Trustee is required by any court or otherwise to return to the Issuer, the Guarantor or any custodian, trustee,
liquidator or other similar official acting in relation to either the Issuer or the Guarantor, any amount paid by either to the Trustee
or such Holder, this Guarantee, to the extent theretofore discharged, will be reinstated in full force and effect.
(e)
The Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby. The Guarantor further agrees that, as between the Guarantor,
on the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations guaranteed hereby may be accelerated
as provided in Article Seven hereof for the purposes of its Guarantee notwithstanding any stay, injunction or other prohibition preventing
such acceleration in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of acceleration of such obligations
as provided in Article Seven hereof, such obligations (whether or not due and payable) will forthwith become due and payable by the Guarantor
for the purpose of its Guarantee.
Section 16.02
Limitation on Guarantor Liability. The Guarantor, and by its acceptance of Securities of any series issued with the benefit
of Guarantees, each Holder, hereby confirms that it is the intention of all such parties that the Guarantee of the Guarantor not constitute
a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar federal or state law to the extent applicable to any Guarantee. To effectuate the foregoing intention, the Trustee,
the Holders and the Guarantor hereby irrevocably agree that the obligations of the Guarantor will, after giving effect to any maximum
amount and all other contingent and fixed liabilities of the Guarantor that are relevant under such laws, result in the obligations of
the Guarantor under its Guarantee not constituting a fraudulent transfer or conveyance.
Section 16.03
Execution and Delivery of Guarantee. For all Securities issued after February 10, 2023 as to which the Issuer elects to
issue with the benefit of the Guarantees as provided herein, to evidence its Guarantee set forth in Section 16.01 in respect of Securities
of a series issued with the benefit of Guarantees, the Guarantor hereby agrees that a notation of such Guarantee substantially in the
form as shall be established in one or more indentures supplemental hereto, will be endorsed by an officer of the Guarantor on each Security
of that series authenticated and delivered by the Trustee and that this Indenture will be executed on behalf of the Guarantor by one of
its officers.
The Guarantor hereby agrees that its Guarantee
set forth in Section 16.01 will remain in full force and effect notwithstanding any failure to endorse on each Security of that series
a notation of such Guarantee.
If an officer whose signature is on this Indenture
or on the Guarantee no longer holds that office at the time the Trustee authenticates the Security of that series on which a Guarantee
is endorsed, such Guarantee will be valid nevertheless.
The delivery of any Security of a series issued
with the benefit of Guarantees by the Trustee, after the authentication thereof hereunder, will constitute due delivery of the Guarantee
set forth in this Indenture on behalf of the Guarantor (including, for the avoidance of doubt, all Securities which have been previously
issued, and authenticated by the Trustee, and which remain Outstanding as of February 10, 2023).
Article
XVII
MISCELLANEOUS PROVISIONS
Section 17.01
Certificates and Opinions as to Conditions Precedent.
(a)
Upon any request or application by the Issuer to the Trustee to take any action under any of the provisions of this Indenture,
the Issuer shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in
this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent have been complied with.
(b)
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition
or covenant provided for in this Indenture (other than the certificates provided pursuant to Section 6.05 of this Indenture) shall include
(i) a statement that the Person giving such certificate or opinion has read such covenant or condition; (ii) a brief statement as to the
nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are
based; (iii) a statement that, in the view or opinion of such Person, he or she has made such examination or investigation as is necessary
to enable such Person to express an informed view or opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the view or opinion of such Person, such condition or covenant has been complied with.
(c)
Any certificate, statement or opinion of an officer of the Issuer or Guarantor may be based, insofar as it relates to legal matters,
upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to the matters upon which his or her certificate, statement or opinion
is based are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, upon
a certificate, statement or opinion of, or representations by, an officer or officers of the Issuer or Guarantor stating that the information
with respect to such factual matters is in the possession of the Issuer, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate, statement or opinion or representations with respect to such matters are erroneous.
(d)
Any certificate, statement or opinion of an officer of the Issuer or of counsel to the Issuer may be based, insofar as it relates
to accounting matters, upon a certificate or opinion of, or representations by, an accountant or firm of accountants, unless such officer
or counsel, as the case may be, knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the accounting matters upon which his or her certificate, statement or opinion may be based are erroneous. Any certificate
or opinion of any firm of independent registered public accountants filed with the Trustee shall contain a statement that such firm is
independent.
(e)
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered
by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons
as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
(f)
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions
or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Section 17.02
Trust Indenture Act Controls. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by, or another provision included in this Indenture which is required to be included in this Indenture by any of the
provisions of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed duties or incorporated provision shall control.
Section 17.03
Notices to the Issuer and Trustee. Any notice or demand authorized by this Indenture to be made upon, given or furnished to, or
filed with, the Issuer or the Trustee shall be sufficiently made, given, furnished or filed for all purposes if it shall be mailed, delivered
or telefaxed to:
(a)
the Issuer, at 4600 South Syracuse Street, Suite 500, Denver, Colorado 80237, Attention: General Counsel, or at such other address
as may have been furnished in writing to the Trustee by the Issuer.
(b)
the Trustee, at the Corporate Trust Office, with a copy to the Trustee at 333 South Hope Street, Suite 2525, Los Angeles, CA 90071,
Attention: Corporate Trust Unit.
Any such notice, demand or other document shall be in the English language.
In addition to the foregoing, the Trustee shall have the right to accept
and act upon instructions, including funds transfer instructions (for the purposes of this Section, “Instructions”) given
pursuant to the Indenture and delivered using Electronic Means; provided, however, that the Issuer shall provide to the Trustee an incumbency
certificate listing authorized officers and containing specimen signatures of such authorized officers, which incumbency certificate shall
be amended by the Issuer whenever a person is to be added or deleted from the listing. If the Issuer elects to give the Trustee Instructions
using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such
Instructions shall be deemed controlling. The Issuer understands and agrees that the Trustee cannot determine the identity of the actual
sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an authorized
officer listed on the incumbency certificate provided to the Trustee have been sent by such authorized officer. The Issuer shall be responsible
for ensuring that only authorized officers transmit such Instructions to the Trustee and that the Issuer and all authorized officers are
solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication
keys upon receipt by the Issuer. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from
the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with
a subsequent written instruction. The Issuer agrees: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions
to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception
and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting
Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the
Issuer; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a
commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately
upon learning of any compromise or unauthorized use of the security procedures.
Section 17.04
Notices to Securityholders; Waiver. Any notice required or permitted to be given to Securityholders shall be sufficiently
given (unless otherwise herein expressly provided),
(a)
if to Holders, if given in writing by first class mail, postage prepaid, or otherwise given pursuant to applicable Depositary procedures
to such Holders at their addresses as the same shall appear on the Register of the Issuer; provided, that in the event of suspension of
regular mail service or by reason of any other cause it shall be impracticable to give notice by mail, then such notification as shall
be given with the approval of the Trustee shall constitute sufficient notice for every purpose hereunder; or
(b) if
a series of Securities has been issued in the form of one or more Global Securities through DTC as Depositary, notice may be
provided with respect to such series of Securities by delivery of such notice to DTC for posting through its “Legal Notice
Service” (LENS) or a successor system thereof.
Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance on such waiver. In any case where notice to Holders is given
by mail; neither the failure to mail such notice nor any defect in any notice so mailed to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders, and any notice that is mailed in the manner herein provided shall be conclusively presumed
to have been duly given. In any case where notice to Holders is given by publication, any defect in any notice so published as to any
particular Holder shall not affect the sufficiency of such notice with respect to other Holders, and any notice that is published in the
manner herein provided shall be conclusively presumed to have been duly given.
Section 17.05
Legal Holiday. Unless otherwise specified pursuant to Section 3.01, in any case where any Interest Payment Date, Redemption
Date or Maturity of any Security of any series shall not be a Business Day at any Place of Payment for the Securities of that series,
then payment of principal and premium, if any, or interest need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same force and effect as if made on such Interest Payment Date, Redemption
Date or Maturity and no interest shall accrue on such payment for the period from and after such Interest Payment Date, Redemption Date
or Maturity, as the case may be, to such Business Day if such payment is made or duly provided for on such Business Day.
Section 17.06
Effects of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience
only and shall not affect the construction hereof.
Section 17.07
Successors and Assigns. All covenants and agreements in this Indenture by the parties hereto shall bind their respective
successors and assigns and inure to the benefit of their permitted successors and assigns, whether so expressed or not.
Section 17.08
Separability Clause. In case any provision in this Indenture or in the Securities or Guarantee shall be invalid, illegal
or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 17.09
Benefits of Indenture. Nothing in this Indenture expressed and nothing that may be implied from any of the provisions hereof
is intended, or shall be construed, to confer upon, or to give to, any Person or corporation other than the parties hereto and their successors
and the Holders of the Securities any benefit or any right, remedy or claim under or by reason of this Indenture or any covenant, condition,
stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and agreements in this Indenture contained
shall be for the sole and exclusive benefit of the parties hereto and their successors and of the Holders of the Securities.
Section 17.10 Counterparts
Originals. This Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an
original, but all such counterparts shall together constitute but one and the same instrument. The words “execution,”
“signed,” “signature,” and words of like import in this Indenture or in any other certificate, agreement or
document related to this Indenture shall include images of manually executed signatures transmitted by facsimile or other electronic
format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures
(including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without
limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be
of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system
to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law
based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. Without limitation to the foregoing, and anything
in this Indenture to the contrary notwithstanding, (a) any Officer’s Certificate, Issuer Order, Opinion of Counsel, Security,
Guarantee endorsed on any Security, opinion of counsel, instrument, agreement or other document delivered pursuant to this Indenture
may be executed, attested and transmitted by any of the foregoing electronic means and formats, (b) all references in Section 3.03
or elsewhere in this Indenture to the execution, attestation or authentication of any Security, any Guarantee endorsed on any
Security, or any certificate of authentication appearing on or attached to any Security by means of a manual or facsimile signature
shall be deemed to include signatures that are made or transmitted by any of the foregoing electronic means or formats, and (c) any
requirement in the Indenture that any signature be made under a corporate seal (or facsimile thereof) shall not be applicable to the
Securities or any Guarantees endorsed on any Securities.
Section 17.11
Governing Law; Waiver of Trial by Jury. This Indenture and the Securities shall be deemed to be contracts made under the
law of the State of New York, and for all purposes shall be governed by and construed in accordance with the law of said State.
EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY
BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS INDENTURE, THE SECURITIES OR ANY GUARANTEE.
Section 17.12
Submission to Jurisdiction. The Issuer and each Guarantor hereby irrevocably submits to the jurisdiction of any New York
State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Southern District of Manhattan
in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture, the Guarantees and
the Notes, and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid
courts.
Section 17.13
Sanctions Representations.
(a)
The Issuer and the Guarantor represent that neither the Issuer nor the Guarantor nor, to the knowledge of the Issuer and the Guarantor,
any of their respective affiliates, subsidiaries, directors or officers are the subject of any sanctions enforced by the U.S. Government,
(including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of
State), the United Nations Security Council, the European Union, His Majesty’s Treasury, or other relevant sanctions authority (collectively
“Sanctions”); and
(b)
Each of the Issuer and the Guarantor covenants that it will not directly or indirectly use any funds received pursuant to this
Indenture, (i) to fund or facilitate any activities of or business with any Person who, at the time of such funding, is the subject of
Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that, at the time of such funding or
facilitation, is the subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any Person (in
each case, except to the extent permitted for a Person required to comply with such Sanctions).
IN WITNESS WHEREOF, the parties have caused this
Indenture to be duly executed as of the date first written above.
| |
Healthpeak OP, LLC, |
| |
as Issuer
By: Healthpeak Properties, Inc., its Managing Member |
| |
|
| |
By: |
/s/ Peter A. Scott |
| |
Name: |
Peter A. Scott |
| |
Title: |
Chief Financial Officer |
| |
|
|
| |
Healthpeak Properties, Inc., |
| |
as Guarantor |
| |
|
| |
By: |
/s/ Peter A. Scott |
| |
Name: |
Peter A. Scott |
| |
Title: |
Chief Financial Officer |
| |
|
|
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The Bank of New York Mellon Trust
Company, N.A., as Trustee |
| |
|
| |
By: |
/s/ April Bradley |
| |
Name: |
April Bradley |
| |
Title: |
Vice President |
[Signature page to A&R
2012 Indenture]
Exhibit 5.1
February 10, 2023
Healthpeak Properties, Inc.
Healthpeak OP, LLC
4600 South Syracuse Street
Suite 500
Denver, Colorado 80237
| Re: | Healthpeak Properties, Inc., a Maryland corporation
(the "Corporation"), and Healthpeak OP, LLC, a Maryland limited liability company
of which the Corporation is the managing member (the "Operating Company") - Registration
Statement on Form S-3 pertaining to an indeterminate aggregate initial offering price or
number of (i) shares of common stock, par value $1.00 per share (the "Common Stock"),
of the Corporation; (ii) shares of preferred stock, par value $1.00 per share (the "Preferred
Stock"), of the Corporation; (iii) fractional shares of Preferred Stock represented
by depositary shares ("Depositary Shares"); (iv) warrants ("Warrants")
to purchase shares of Common Stock, shares of Preferred Stock, Corporation Debt Securities
or other securities; (v) debt securities of the Corporation (the "Corporation Debt Securities");
(vi) debt securities of the Operating Company (the "OP Debt Securities"); (vii)
guarantees by the Corporation of OP Debt Securities (the "Corporation Guarantees");
and (viii) guarantees by the Operating Company of Corporation Debt Securities (the "OP
Guarantees") |
Ladies and Gentlemen:
We have acted as Maryland corporate
counsel to the Corporation and Maryland limited liability company counsel to the Operating Company in connection with (a) the registration
of the shares of Common Stock, shares of Preferred Stock, Depositary Shares, Corporation Debt Securities, Warrants and Corporation Guarantees
(collectively, the "Corporation Securities"), and (b) the registration of the OP Debt Securities and OP Guarantees (together
with the Corporation Securities, collectively, the "Securities"), under the Securities Act of 1933, as amended (the "Act"),
by the Corporation and the Operating Company, as applicable, on Form S-3 filed or to be filed with the Securities and Exchange Commission
(the "Commission") on or about the date hereof, and any amendments thereto (the "Registration Statement"), if any
are to be filed with the Commission subsequent to the date hereof. You have requested our opinion with respect to the matters set forth
below.
In our capacity as Maryland corporate
counsel to the Corporation and Maryland limited liability company counsel to the Operating Company and for the purposes of this opinion,
we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (collectively,
the "Documents"):
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 10, 2023
Page 2
| (i) | the corporate charter of the Corporation (the
"Charter") consisting of Articles of Incorporation filed with the State Department
of Assessments and Taxation of Maryland (the "Department") on December 13, 2022,
Articles of Amendment and Restatement filed with the Department on February 9, 2023, and
Articles of Amendment filed with the Department on February 9, 2023; |
| (ii) | the Amended and Restated Bylaws of the Corporation,
dated as of February 10, 2023 (the "Bylaws"); |
| (iii) | the Articles of Conversion of Healthpeak
Properties Interim, Inc. (formerly known as Healthpeak Properties, Inc.) filed with the Department
on February 9, 2023, and the Articles of Organization of the Operating Company filed with
the Department on February 9, 2023 (the "Articles of Organization"); |
| (iv) | the Operating Agreement of the Operating Company,
dated as of February 10, 2023 (the "Operating Agreement"); |
| (v) | certain resolutions (the "Directors' Resolutions")
adopted by the Board of Directors of the Corporation (the "Board of Directors")
with respect to the Registration Statement; |
| (vi) | a certificate of one or more officers of the
Corporation, dated as of a recent date (the "Officer's Certificate"), to the effect
that, among other things, the Charter, the Bylaws, the Articles of Organization, the Operating
Agreement and the Directors' Resolutions are true, correct and complete, have not been rescinded
or modified and are in full force and effect on the date of the Officer's Certificate; |
| (vii) | the Registration Statement and the related
form of prospectus included therein (the "Prospectus"), in substantially the form
filed or to be filed with the Commission pursuant to the Act; |
| (viii) | a status certificate of the Department,
dated as of a recent date, to the effect that the Corporation is duly incorporated and existing
under the laws of the State of Maryland; |
| (ix) | a status certificate of the Department, dated
as of a recent date, to the effect that the Operating Company is duly formed and existing
under the laws of the State of Maryland; and |
| (x) | such other laws, records, documents, certificates,
opinions and instruments as we have deemed necessary to render this opinion, subject to the
limitations, assumptions and qualifications noted below. |
In reaching the opinions set
forth below, we have assumed the following:
| (a) | each person executing any instrument, document
or agreement on behalf of any party (other than the Corporation and the Operating Company)
is duly authorized to do so; |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 10, 2023
Page 3
| (b) | each natural person executing any instrument,
document or agreement is legally competent to do so; |
| (c) | any of the Documents submitted to us as originals
are authentic; the form and content of any Documents submitted to us as unexecuted drafts
do not differ in any respect relevant to this opinion from the form and content of such documents
as executed and delivered; any of the Documents submitted to us as certified, facsimile or
photostatic copies conform to the original Documents; all signatures on all of the Documents
are genuine; all public records reviewed or relied upon by us or on our behalf are true and
complete; there has been no 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; |
| (d) | the Officer's Certificate and all other certificates
submitted to us are true and correct both when made and as of the date hereof; |
| (e) | the resolutions to be adopted subsequent to
the date hereof, and the actions to be taken by the Board of Directors subsequent to the
date hereof, including, but not limited to, the adoption of all resolutions and the taking
of all actions necessary to authorize the issuance and sale (and execution and delivery,
if applicable) of the Corporation Securities by the Corporation and the OP Debt Securities
by the Operating Company in accordance with the procedures set forth in paragraphs 1, 2,
3, 4, 5, 6, 7 and 8 below, will occur at duly called meetings at which a quorum of the incumbent
directors of the Corporation is present and acting throughout, or by unanimous written consent
of all incumbent directors, all in accordance with the Charter and Bylaws of the Corporation
and applicable law; |
| (f) | the number of shares of Preferred Stock of
each series and the number of shares of Common Stock to be offered and sold subsequent to
the date hereof as Corporation Securities under the Registration Statement, together with
the number of shares of Preferred Stock of such series and the number of shares of Common
Stock issuable upon the conversion or exchange (or exercise in the case of Warrants) of any
Securities offered and sold subsequent to the date hereof, and the number of shares of Preferred
Stock of such series represented by Depositary Shares to be offered and sold subsequent to
the date hereof, will not, in the aggregate, exceed the number of shares of Preferred Stock
of such series, and the number of shares of Common Stock, respectively, authorized in the
Charter of the Corporation, less the number of shares of Preferred Stock of such series and
the number of shares of Common Stock, respectively, authorized and reserved for issuance
and issued and outstanding on the date subsequent to the date hereof on which the Securities
are authorized, the date subsequent to the date hereof on which the Securities are issued
and delivered, the date subsequent to the date hereof on which any Securities are converted
into, or exchanged or exercised for, shares of Common Stock or shares of Preferred Stock
of such series, respectively, and the date subsequent to the date hereof on which shares
of Preferred Stock of such series and shares of Common Stock, respectively, are issued pursuant
to the conversion, exchange or exercise of such Securities; |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 10, 2023
Page 4
| (g) | none of the terms of any of the Securities
or any agreements related thereto to be established subsequent to the date hereof, nor the
issuance and delivery of any such Securities containing such terms established subsequent
to the date hereof, nor the compliance by the Corporation or the Operating Company with the
terms of any such Securities or agreements established subsequent to the date hereof, nor
the form of certificate, receipt or other instrument or document evidencing any such Securities
approved subsequent to the date hereof, will violate any applicable law or will conflict
with, or result in a breach or violation of, the Charter or Bylaws of the Corporation or
the Articles of Organization or Operating Agreement of the Operating Company, any instrument
or agreement to which the Corporation or the Operating Company is a party or by which the
Corporation or the Operating Company is bound or any order or decree of any court, administrative
or governmental body having jurisdiction over the Corporation or the Operating Company; |
| (h) | the form of certificate, receipt or other instrument
or document representing the Securities approved subsequent to the date hereof will conform
in all respects to the requirements applicable under Maryland law; |
| (i) | none of the Corporation Securities to be offered
and sold subsequent to the date hereof, and none of the shares of Preferred Stock or shares
of Common Stock or other securities issuable upon the conversion or exchange (or exercise
in the case of Warrants) of any Securities, will be issued in violation of the provisions
of the Charter of the Corporation relating to business combinations or the provisions of
the Charter of the Corporation imposing restrictions on ownership and transfer of shares
of stock of the Corporation; |
| (j) | none of the Corporation Securities to be offered
and sold subsequent to the date hereof, and none of the shares of Preferred Stock or shares
of Common Stock or other securities issuable upon the conversion or exchange (or exercise
in the case of Warrants) of any Securities, will be issued and sold to an Interested Stockholder
of the Corporation or an Affiliate thereof, all as defined in Subtitle 6 of Title 3 of the
Maryland General Corporation Law (the "MGCL"), in violation of Section 3-602 of
the MGCL; |
| (k) | all Corporation Debt Securities to be offered
and sold subsequent to the date hereof will be issued under a valid and legally binding indenture
or other similar instrument, enforceable against the parties thereto in accordance with its
terms, that conforms to the description thereof set forth in the Prospectus or related prospectus
supplement; all OP Debt Securities to be offered and sold subsequent to the date hereof will
be issued under a valid and legally binding indenture or other similar instrument, enforceable
against the parties thereto in accordance with its terms, that conforms to the description
thereof set forth in the Prospectus or related prospectus supplement; all
Depositary Shares to be offered and sold subsequent to the date hereof will be issued under
a valid and legally binding depositary agreement, enforceable against the parties thereto
in accordance with its terms, that conforms to the description thereof set forth in the Prospectus
or related prospectus supplement; and all Warrants to be offered and sold subsequent to the
date hereof will be issued under a valid and legally binding warrant agreement, enforceable
against the parties thereto in accordance with its terms, that conforms to the description
thereof set forth in the Prospectus or related prospectus supplement; and |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 10, 2023
Page 5
| (l) | prior to or contemporaneous with the authorization,
execution and delivery of any Corporation Guarantees by the Corporation issued, executed
and delivered subsequent to the date hereof, the OP Debt Securities to which such Corporation
Guarantees relate will have been duly issued, executed and delivered by, and will be the
valid and legally binding obligation of, the Operating Company; and prior to or contemporaneous
with the authorization, execution and delivery of any OP Guarantees by the Operating Company
issued, executed and delivered subsequent to the date hereof, the Corporation Debt Securities
to which such OP Guarantees relate will have been duly issued, executed and delivered by,
and will be the valid and legally binding obligation of, the Corporation. |
Based on the foregoing, and
subject to the assumptions and qualifications set forth herein, it is our opinion that:
| 1. | Upon due authorization by the Board of Directors
of a designated number of shares of Common Stock for issuance at a minimum price or value
of consideration to be set by the Board of Directors, all necessary corporate action on the
part of the Corporation will have been taken to authorize the issuance and sale of such shares
of Common Stock, and when such shares of Common Stock are issued and delivered against payment
of the consideration therefor as set by the Board of Directors, such shares of Common Stock
will be validly issued, fully paid and non-assessable. |
| 2. | Upon: (a) designation by the Board of Directors
of one or more series of Preferred Stock to distinguish each such series from any other outstanding
series of Preferred Stock; (b) setting by the Board of Directors of the number of shares
of Preferred Stock to be included in such series; (c) establishment by the Board of Directors
of the preferences, conversion and other rights, voting powers, restrictions, limitations
as to dividends, qualifications and terms and conditions of redemption of such series of
Preferred Stock; (d) filing by the Corporation with the Department of articles supplementary
setting forth a description of such series of Preferred Stock, including the preferences,
conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications
and terms and conditions of redemption as set by the Board of Directors and a statement that
such series of the Preferred Stock has been classified by the Board of Directors under the
authority contained in the Charter, and the acceptance for record by the Department of such
articles supplementary; (e) due authorization by the Board of Directors of a designated number
of shares of such series of Preferred Stock for issuance at a minimum price or value of consideration
to be set by the Board of Directors, and (f) reservation and due authorization by the Board
of Directors of any shares of any other series of Preferred Stock and/or any shares of Common
Stock issuable upon conversion of such series of Preferred Stock in accordance with the procedures
set forth in this Paragraph 2 and in Paragraph 1 above, respectively, and/or due authorization
by the Board of Directors of any other securities of the Corporation issuable upon conversion
of such series of Preferred Stock in accordance with resolutions to be adopted subsequent
to the date hereof, and/or actions to be taken subsequent to the date hereof, by the Board
of Directors, at a minimum price or value of consideration to be set by the Board of Directors,
all necessary corporate action on the part of the Corporation will have been taken to authorize
the issuance and sale of the shares of such series of Preferred Stock, and when such shares
of such series of Preferred Stock are issued and delivered against payment of the consideration
therefor as set by the Board of Directors, such shares of such series of Preferred Stock
will be validly issued, fully paid and non-assessable.
|
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 10, 2023
Page 6
| 3. | The Corporation has the corporate power to enter
into depositary agreements, and upon completion of the procedures set forth in paragraph
2 above for the issuance of shares of any series of Preferred Stock, and approval of a depositary
agreement and due authorization by the Board of Directors of the delivery of Depositary Shares
pursuant to such depositary agreement, due execution of such depositary agreement on behalf
of the Corporation, and compliance with the conditions established by the Board of Directors
for the delivery of the Depositary Shares, such Depositary Shares may be delivered by or
on behalf of the Corporation, and such series of Preferred Stock represented by the Depositary
Shares will, upon issuance and delivery against payment of the consideration therefor as
set by the Board of Directors, be validly issued, fully paid and non-assessable. |
| 4. | The Corporation has the corporate power to create
the obligation to be evidenced by the Corporation Debt Securities, and upon: (a) designation
and titling by the Board of Directors of the Corporation Debt Securities; (b) establishment
by the Board of Directors of the terms, conditions and provisions of any Corporation Debt
Securities; (c) establishment by the Board of Directors of the aggregate principal amount
of any such Corporation Debt Securities and any limit on such aggregate principal amount;
(d) due authorization by the Board of Directors of the execution and delivery of one or more
indentures or similar instruments pursuant to which such Corporation Debt Securities will
be issued, each dated as of a date prior to the issuance of the Corporation Debt Securities
to which it relates; (e) due authorization by the Board of Directors of such Corporation
Debt Securities for issuance at a minimum price or value of consideration to be set by the
Board of Directors; and (f) reservation and due authorization by the Board of Directors of
the issuance of any shares of Common Stock and/or shares of any series of Preferred Stock
issuable upon conversion of the Corporation Debt Securities in accordance with the procedures
set forth in Paragraphs 1 and 2 above, respectively; due authorization by the Board of Directors
of any Corporation Debt Securities of another series issuable upon conversion of the Corporation
Debt Securities in accordance with the procedures set forth in this Paragraph 4; and/or the
due authorization by the Board of Directors of any other securities of the Corporation issuable
upon conversion of the Corporation Debt Securities in accordance with resolutions to be adopted
subsequent to the date hereof, and/or actions to be taken subsequent to the date hereof,
by the Board of Directors, at a minimum price or value of consideration to be set by the
Board of Directors, all necessary corporate action on the part of the Corporation will have
been taken to authorize such Corporation Debt Securities
|
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 10, 2023
Page 7
| 5. | The Corporation has the corporate power to enter
into warrant agreements, and upon: (a) designation and titling by the Board of Directors
of the Warrants; (b) due authorization by the Board of Directors of the form, terms, execution
and delivery by the Corporation of any warrant agreement or other instrument relating to
the Warrants; (c) setting by the Board of Directors of the number of Warrants to be issued;
(d) establishment by the Board of Directors of the terms, conditions and provisions of the
Warrants; (e) due authorization by the Board of Directors of the Warrants for issuance at
a minimum price or value of consideration to be set by the Board of Directors; and (f) reservation
and due authorization by the Board of Directors of the issuance of any shares of Common Stock
and/or shares of any series of Preferred Stock issuable upon exercise of the Warrants in
accordance with the procedures set forth in Paragraphs 1 and 2 above, respectively; due authorization
by the Board of Directors of any Corporation Debt Securities issuable upon exercise of the
Warrants in accordance with the procedures set forth in Paragraph 4 above; and/or due authorization
by the Board of Directors of any other securities of the Corporation issuable upon exercise
of the Warrants in accordance with resolutions to be adopted subsequent to the date hereof,
and/or actions to be taken subsequent to the date hereof, by the Board of Directors, at a
minimum price or value of consideration to be set by the Board of Directors, all necessary
corporate action on the part of the Corporation will have been taken to authorize such Warrants. |
| 6. | The Corporation, in its capacity as managing
member of the Operating Company, on behalf of the Operating Company, has the corporate power
to cause the Operating Company to create the obligation to be evidenced by the OP Debt Securities,
and the Operating Company has the limited liability company power to create the obligation
to be evidenced by the OP Debt Securities, and upon: (a) designation and titling by the Board
of Directors of the OP Debt Securities; (b) establishment by the Board of Directors of the
terms, conditions and provisions of such OP Debt Securities; (c) establishment by the Board
of Directors of the aggregate principal amount of such OP Debt Securities and any limit on
such aggregate principal amount; (d) due authorization by the Board of Directors of the form,
terms and conditions of one or more indentures or similar instruments pursuant to which such
OP Debt Securities will be issued, each dated as of a date prior to the issuance of such
OP Debt Securities; (e) due authorization by the Board of Directors of such OP Debt Securities
for issuance at a minimum price or value of consideration as set by the Board of Directors;
and (f) reservation and due authorization for issuance by the Board of Directors of any shares
of Common Stock and/or any shares of Preferred Stock issuable upon exchange of such OP Debt
Securities in accordance with the procedures set forth in Paragraphs 2 and 3 above, respectively,
due authorization by the Board of Directors of any OP Debt Securities of another series issuable
upon conversion of or in exchange for such OP Debt Securities in accordance with the procedures
set forth in this Paragraph 6 and/or due authorization by the Board of Directors of any other
securities of the Corporation or the Operating Company issuable upon conversion of, or in
exchange for, such OP Debt Securities in accordance with resolutions adopted or actions taken
by the Board of Directors subsequent to the date hereof at a minimum price or value of consideration
as set by the Board of Directors, all necessary corporate action on the part of the Company,
in its capacity as managing member of the Operating Company, on behalf of the Operating Company,
and all necessary limited liability company action on the part of the Operating Company,
will have been taken to authorize such OP Debt Securities. |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 10, 2023
Page 8
| 7. | The Corporation has the corporate power to enter
into Corporation Guarantees, and upon completion of the procedures set forth in Paragraph
6 above for authorization of the OP Debt Securities by the Corporation, in its capacity as
managing member of the Operating Company, on behalf of the Operating Company, and due authorization
and approval by the Board of Directors of the Corporation Guarantees relating to such OP
Debt Securities, and compliance with the conditions established by the Board of Directors
for delivery of such Corporation Guarantees, such Corporation Guarantees will have been duly
authorized by all necessary corporate action on the part of the Corporation and may be delivered
by or on behalf of the Corporation. |
| 8. | The Corporation, in its capacity as managing
member of the Operating Company, on behalf of the Operating Company, has the corporate power
to cause the Operating Company to enter into OP Guarantees, and the Operating Company has
the limited liability company power to enter into OP Guarantees, and upon completion of the
procedures set forth in Paragraph 4 above for authorization of the Corporation Debt Securities
by the Corporation, and due authorization and approval by the Board of Directors of the Corporation,
in its capacity as managing member of the Operating Company, on behalf of the Operating Company,
of the OP Guarantees relating to such Corporation Debt Securities, and compliance with the
conditions established by the Board of Directors for delivery of such OP Guarantees, such
OP Guarantees will have been duly authorized by all necessary limited liability company action
on the part of the Operating Company and may be delivered by or on behalf of the Operating
Company. |
BALLARD SPAHR LLP
Healthpeak Properties, Inc.
Healthpeak OP, LLC
February 10, 2023
Page 9
The foregoing opinion is limited
to the substantive 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 applicability or effect of any federal or state securities laws, including the securities laws of the State of Maryland, or
as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein
would be governed by the law of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter.
This opinion letter is issued
as of the date hereof and is necessarily limited to laws now in effect and facts and circumstances presently existing and brought to
our attention. We assume no obligation to supplement this opinion letter if any applicable laws change after the date hereof, or if we
become aware of any facts or circumstances that now exist or that occur or arise in the future and may change the opinions expressed
herein after the date hereof.
We consent to your filing this
opinion as an exhibit to the Registration Statement and further consent to the filing of this opinion as an exhibit to the applications
to securities commissioners for the various states of the United States for registration of the Securities. We also consent to the identification
of our firm as Maryland counsel to the Corporation and the Operating Company in the section of the Registration Statement entitled "Legal
Matters". 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 Act.
| |
| |
Very truly yours, |
| |
| |
/s/ Ballard Spahr LLP |
Exhibit 5.2
| |
355 South Grand Avenue, Suite 100 |
|
| |
Los Angeles, California 90071-1560 |
|
| |
Tel: +1.213.485.1234 Fax: +1.213.891.8763 |
| |
www.lw.com |
|
 |
FIRM / AFFILIATE OFFICES |
|
| Austin |
Milan |
| |
Beijing |
Munich |
| |
Boston |
New York |
| |
Brussels |
Orange County |
| |
Century City |
Paris |
| February 10, 2023 |
Chicago |
Riyadh |
| |
Dubai |
San Diego |
| |
Düsseldorf |
San Francisco |
| Healthpeak Properties, Inc. |
Frankfurt |
Seoul |
| Healthpeak OP, LLC |
Hamburg |
Shanghai |
| 4600 South Syracuse Street, Suite 500 |
Hong Kong |
Silicon Valley |
| Denver, CO 80237 |
Houston |
Singapore |
| |
London |
Tel Aviv |
| |
Los Angeles |
Tokyo |
| |
Madrid |
Washington, D.C. |
Re: Healthpeak Properties, Inc. and Healthpeak OP, LLC
To the addressees set forth above:
We have acted as special counsel to
Healthpeak Properties, Inc., a Maryland corporation (the “Company”), and Healthpeak OP, LLC, a Maryland
limited liability company (“Healthpeak OP”), in connection with the filing on the date hereof with the
Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-3 (the
“Registration Statement”), including a base prospectus (the “Base Prospectus”),
which provides that the Base Prospectus will be supplemented by one or more prospectus supplements (each such prospectus supplement,
together with the Base Prospectus, a “Prospectus”), under the Securities Act of 1933, as amended (the
“Act”), relating to the registration for issue and sale (i) by Healthpeak OP of one or more series of
Healthpeak OP’s debt securities (the “Healthpeak OP Debt Securities”) to be issued pursuant to an
indenture incorporated by reference as an exhibit to the Registration Statement by and among Healthpeak OP, as issuer, the Company,
as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee, and one or more board resolutions, supplements
thereto or officer’s certificates thereunder (such indenture, together with the applicable board resolution, supplement or
officer’s certificate pertaining to the applicable series of Healthpeak OP Debt Securities, the “Healthpeak OP
Indenture”), (ii) by the Company of guarantees of the Healthpeak OP Debt Securities (the
“Guarantees”) pursuant to the Healthpeak OP Indenture, (iii) by the Company of one or more series of the
Company’s debt securities (the “Company Debt Securities” and together with the Healthpeak OP Debt
Securities, the “Debt Securities”) to be issued pursuant to an indenture incorporated by reference as an
exhibit to the Registration Statement by and between the Company, as issuer, and The Bank of New York Mellon Trust Company, N.A., as
trustee, and one or more board resolutions, supplements thereto or officer’s certificates thereunder (such indenture, together
with the applicable board resolution, supplement or officer’s certificate pertaining to the applicable series of Company Debt
Securities, the “Company Indenture”), (iv) by the Company of shares of the Company’s common stock,
$1.00 par value per share (“Common Stock”), (v) by the Company of shares of one or more series of the
Company’s preferred stock, $1.00 par value per share (“Preferred Stock”), (vi) by the Company of
shares of Preferred Stock represented by depositary shares (“Depositary Shares”) and (vii) by the Company
of warrants to purchase Company Debt Securities, shares of Common Stock, shares of Preferred Stock or other securities of the
Company (“Warrants”).
February 10, 2023
Page 2
This opinion is being furnished in connection with
the requirements of Item 601(b)(5) of Regulation S-K under the Act, and no opinion is expressed herein as to any matter pertaining to
the contents of the Registration Statement or related applicable Prospectus, other than as expressly stated herein with respect to the
issue of the relevant securities.
As such counsel, we have examined such matters
of fact and questions of law as we have considered appropriate for purposes of this letter. With your consent, we have relied upon certificates
and other assurances of officers of the Company, Healthpeak OP and others as to factual matters without having independently verified
such factual matters. We are opining herein as to the internal laws of the State of New York, and we express no opinion with respect to
the applicability thereto, or the effect thereon, of the laws of any other jurisdiction or as to any matters of municipal law or the laws
of any local agencies within any state. Various issues concerning Maryland law are addressed in the opinion of Ballard Spahr LLP, which
has been separately provided to you. We express no opinion with respect to those matters herein, and to the extent elements of those opinions
are necessary to the conclusions expressed herein, we have, with your consent, assumed such matters.
Subject to the foregoing and the other matters
set forth herein, it is our opinion that, as of the date hereof:
1.
When the Healthpeak OP Indenture has been duly authorized, executed and delivered by all necessary limited liability company action
of the Healthpeak OP, and when the specific terms of a particular series of Healthpeak OP Debt Securities have been duly established in
accordance with the terms of the Healthpeak OP Indenture and authorized by all necessary limited liability company action of Healthpeak
OP, and such Healthpeak OP Debt Securities have been duly executed, authenticated, issued and delivered against payment therefor, and
when the Guarantees of such Healthpeak OP Debt Securities have been duly authorized by all necessary corporate action of the Company and
duly executed and delivered by the Company in accordance with the terms of the Healthpeak OP Indenture and, in each case, in the manner
contemplated by the applicable Prospectus and by such limited liability company and corporate action, as applicable, such Healthpeak OP
Debt Securities and Guarantees will be the legally valid and binding obligations of Healthpeak OP and the Company, respectively, enforceable
against Healthpeak OP and the Company in accordance with their respective terms.
2.
When the Company Indenture has been duly authorized, executed and delivered by all necessary corporate action of the Company, and
when the specific terms of a particular series of Company Debt Securities have been duly established in accordance with the terms of the
Company Indenture and authorized by all necessary corporate action of the Company, and such Company Debt Securities have been duly executed,
authenticated, issued and delivered against payment therefor in accordance with the terms of the Company Indenture and in the manner contemplated
by the applicable Prospectus and by such corporate action, such Company Debt Securities will be the legally valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms.
February 10, 2023
Page 3
3.
When the applicable deposit agreement has been duly authorized, executed and delivered by all necessary corporate action of the
Company, and when the specific terms of a particular issuance of Depositary Shares have been duly established in accordance with the terms
of the applicable deposit agreement and authorized by all necessary corporate action of the Company, and such Depositary Shares have been
duly executed, authenticated, issued and delivered against payment therefor in accordance with the terms of the applicable deposit agreement
and in the manner contemplated by the applicable Prospectus and by such corporate action (assuming the underlying securities have been
validly issued and deposited with the depositary), such Depositary Shares will be the legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms.
4.
When the applicable warrant agreement has been duly authorized, executed and delivered by all necessary corporate action of the
Company, and when the specific terms of a particular issuance of Warrants have been duly established in accordance with the terms of the
applicable warrant agreement and authorized by all necessary corporate action of the Company, and such Warrants have been duly executed,
authenticated, issued and delivered against payment therefor in accordance with the terms of the applicable warrant agreement and in the
manner contemplated by the applicable Prospectus and by such corporate action (assuming the securities issuable upon exercise of such
Warrants have been duly authorized and reserved for issuance by all necessary corporate action), such Warrants will be the legally valid
and binding obligations of the Company, enforceable against the Company in accordance with their terms.
Our opinions are subject to: (i) the effect of
bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors; (ii) (a) the effect of general principles of equity, whether considered in a proceeding in equity or
at law (including the possible unavailability of specific performance or injunctive relief), (b) concepts of materiality, reasonableness,
good faith and fair dealing, and (c) the discretion of the court before which a proceeding is brought; and (iii) the invalidity under
certain circumstances under law or court decisions of provisions providing for the indemnification of or contribution to a party with
respect to a liability where such indemnification or contribution is contrary to public policy.
We express no opinion as to (a) any provision
for liquidated damages, default interest, late charges, monetary penalties, make-whole premiums or other economic remedies to the
extent such provisions are deemed to constitute a penalty, (b) consents to, or restrictions upon, governing law, jurisdiction,
venue, arbitration, remedies, or judicial relief, (c) waivers of rights or defenses, (d) any provision requiring the payment of
attorneys’ fees, where such payment is contrary to law or public policy, (e) any provision permitting, upon acceleration of
any Debt Securities, collection of that portion of the stated principal amount thereof which might be determined to constitute
unearned interest thereon, (f) the creation, validity, attachment, perfection, or priority of any lien or security interest, (g)
advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes
of limitation, trial by jury or at law, or other procedural rights, (h) waivers of broadly or vaguely stated rights, (i) provisions
for exclusivity, election or cumulation of rights or remedies, (j) provisions authorizing or validating conclusive or discretionary
determinations, (k) grants of setoff rights, (l) proxies, powers and trusts, (m) provisions prohibiting, restricting, or requiring
consent to assignment or transfer of any right or property, (n) provisions purporting to make a guarantor primarily liable rather
than as a surety, (o) provisions purporting to waive modifications of any guaranteed obligation to the extent such modification
constitutes a novation, (p) any provision to the extent it requires that a claim with respect to a security denominated in other
than U.S. dollars (or a judgment in respect of such a claim) be converted into U.S. dollars at a rate of exchange at a particular
date, to the extent applicable law otherwise provides, and (q) the severability, if invalid, of provisions to the foregoing
effect.
February 10, 2023
Page 4
With your consent, we have assumed (a) that each
of the OP Debt Securities, Guarantees, Company Debt Securities, Depositary Shares and Warrants and the Healthpeak OP Indenture, Company
Indenture, deposit agreements and warrant agreements governing such relevant securities (collectively, the “Documents”)
will be governed by the internal laws of the State of New York, (b) that each of the Documents has been or will be duly authorized, executed
and delivered by the parties thereto, (c) that each of the Documents constitutes or will constitute legally valid and binding obligations
of the parties thereto other than the Company and Healthpeak OP, as applicable, enforceable against each of them in accordance with their
respective terms, and (d) that the status of each of the Documents as legally valid and binding obligations of the parties will not be
affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court
or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations from, or to make required registrations,
declarations or filings with, governmental authorities.
This opinion is for your benefit in connection
with the Registration Statement and may be relied upon by you and by persons entitled to rely upon it pursuant to the applicable provisions
of the Act. We consent to your filing this opinion as an exhibit to the Registration Statement and to the reference to our firm contained
in the Prospectus under the heading “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category
of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| |
Sincerely, |
| |
| |
/s/ Latham & Watkins LLP |
Exhibit 8.1
| |
355 South Grand Avenue, Suite 100 |
| |
Los Angeles, California 90071-1560 |
| |
Tel: +1.213.485.1234 Fax: +1.213.891.8763 |
| |
www.lw.com |
 |
FIRM / AFFILIATE OFFICES |
| Austin |
Milan |
| Beijing |
Munich |
| Boston |
New York |
| Brussels |
Orange County |
| Century City |
Paris |
| Chicago |
Riyadh |
| February 10, 2023 |
Dubai |
San Diego |
| |
Düsseldorf |
San Francisco |
| |
Frankfurt |
Seoul |
| |
Hamburg |
Shanghai |
| |
Hong Kong |
Silicon Valley |
| |
Houston |
Singapore |
| |
London |
Tel Aviv |
| |
Los Angeles |
Tokyo |
| |
Madrid |
Washington, D.C. |
Healthpeak Properties, Inc.
Healthpeak OP, LLC
4600 South Syracuse Street, Suite 500
Denver, Colorado 80237
Re: Healthpeak Properties, Inc. and Healthpeak OP, LLC
To the addressees set forth above:
We have acted as special tax counsel to Healthpeak
Properties, Inc., a Maryland corporation (the “Company”), and Healthpeak OP, LLC, a Maryland limited liability
company (“Healthpeak OP”), in connection with the filing on the date hereof with the Securities and Exchange
Commission (the “Commission”) of a registration statement on Form S-3 (the “Registration Statement”),
including a base prospectus (the “Base Prospectus”), which provides that the Base Prospectus will be supplemented
by one or more prospectus supplements (each such prospectus supplement, together with the Base Prospectus, a “Prospectus”),
under the Securities Act of 1933, as amended (the “Act”), relating to the registration for issue and sale of
certain securities of the Company and Healthpeak OP.
You
have requested our opinion concerning (i) the statements set forth in the Prospectus under the caption “United States Federal
Income Tax Considerations,” and (ii) certain federal income tax consequences relating to the Company of its election to be
treated as a “real estate investment trust” (a “REIT”) under the Internal Revenue Code of 1986,
as amended (the “Code”). This opinion is based on various facts and assumptions, including the facts
set forth in the Registration Statement and the Prospectus concerning the business, assets and governing documents of the Company and
its subsidiaries. We have also been furnished with, and with your consent have relied upon, certain representations made by the Company
and its subsidiaries with respect to certain factual matters through a certificate of an officer of the Company, dated as of the date
hereof (the “Officer’s Certificate”).
In our capacity as special
tax counsel to the Company, we have made such legal and factual examinations and inquiries, including an examination of originals or copies
certified or otherwise identified to our satisfaction of such documents, corporate records and other instruments as we have deemed necessary
or appropriate for purposes of this opinion. For the purposes of our opinion, we have not made an independent investigation or audit of
the facts set forth in the above referenced documents or in the Officer’s Certificate. In addition, in rendering this opinion we
have assumed the truth and accuracy of all representations and statements made to us that are qualified as to knowledge or belief, without
regard to such qualification. In our examination, we have assumed the authenticity of all documents submitted to us as originals, the
genuineness of all signatures thereon, the legal capacity of natural persons executing such documents and the conformity to authentic
original documents of all documents submitted to us as copies.
February 10, 2023
Page 2 |
| |
 |
We are opining herein only
as to the federal income tax laws of the United States, and we express no opinion with respect to the applicability thereto, or the effect
thereon, of other federal laws or the laws of any state or other jurisdiction, or as to any matters of municipal law or the laws of any
other local agencies within any state.
Based on such facts, and subject
to the qualifications, assumptions, representations and limitations set forth herein, we hereby confirm that:
1. Commencing
with the Company’s taxable year ended December 31, 2015, the Company has been organized and operated in conformity with the
requirements for qualification and taxation as a REIT under the Code, and its current and proposed method of operation, as described
in the materials discussed above, will enable the Company to continue to meet the requirements for qualification and taxation as a REIT
under the Code.
2. The
statements set forth in the Prospectus under the caption “United States Federal Income Tax Considerations,” insofar as they
purport to describe or summarize certain provisions of the statutes or regulations referred to therein, are accurate descriptions or
summaries in all material respects.
No opinion is expressed as
to any matter not discussed herein.
This opinion is rendered to
you as of the date of this letter, and we undertake no obligation to update this opinion subsequent to the date hereof. This opinion is
based on various statutory provisions, regulations promulgated thereunder and interpretations thereof by the Internal Revenue Service
and the courts having jurisdiction over such matters, all of which are subject to change either prospectively or retroactively. Any such
change may affect the conclusions stated herein. Also, any variation or difference in the facts from those set forth in the Registration
Statement, the Prospectus or the Officer’s Certificate may affect the conclusions stated herein. As described in the Registration
Statement and the Prospectus, the Company’s qualification and taxation as a REIT depend upon the Company’s ability to meet
the various qualification tests imposed under the Code, including through actual annual operating results, asset composition, distribution
levels and diversity of stock ownership, the results of which have not been and will not be reviewed by Latham & Watkins LLP.
Accordingly, no assurance can be given that the actual results of the Company’s operation for any particular taxable year will satisfy
such requirements. In addition, the opinion set forth above does not foreclose the possibility that the Company may have to pay a deficiency
dividend, or an excise or penalty tax, which could be significant in amount, in order to maintain its REIT qualification.
February 10, 2023
Page 3 |
| |
| |
This opinion is rendered only to you and is solely for your benefit
in connection with the Registration Statement upon the understanding that we are not hereby assuming professional responsibility to any
other person whatsoever. This opinion may not be relied upon by you for any other purpose, or furnished to, assigned to, quoted to or
relied upon by any other person, firm or other entity for any purpose, without our prior written consent, which may be granted or withheld
in our sole discretion, provided that this opinion may be relied upon by persons entitled to rely on it pursuant to applicable provisions
of federal securities law.
We consent to your filing this opinion as an exhibit
to the Registration Statement and to the reference to our firm contained in the Prospectus under the headings “United States Federal
Income Tax Considerations” and “Legal Matters.” In giving such consent, we do not thereby admit that we are in the category
of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
| |
Sincerely, |
| |
|
| |
/s/ Latham & Watkins LLP |
Exhibit 22.1
The following subsidiary of
Healthpeak Properties, Inc. (the “Company”) (i) will be the issuer of debt securities under the indenture among the Company,
as guarantor, and the subsidiary listed below and (ii) may be the guarantor of debt securities under the indenture to be entered into
among the Company, as issuer, and the subsidiary listed below.
| Subsidiary |
Jurisdiction of Organization |
| Healthpeak OP, LLC |
Maryland |
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 February 8, 2023, relating to the financial statements of Healthpeak Properties, Inc. and the effectiveness
of Healthpeak Properties, Inc.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Healthpeak
Properties, Inc. for the year ended December 31, 2022. We also consent to the reference to us under the heading “Experts”
in such Registration Statement.
| /s/ Deloitte & Touche LLP |
|
| |
| Costa Mesa, California |
|
| February 10, 2023 |
|
Exhibit 25.1
UNITED STATES
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) ¨
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
(Jurisdiction of incorporation
if not a U.S. national bank) |
95-3571558
(I.R.S. employer
identification no.) |
|
333 South Hope Street
Suite 2525
Los Angeles, California
(Address of principal executive offices) |
90071
(Zip code) |
Healthpeak Properties, Inc.
(Exact name of obligor as specified in its charter)
|
Maryland
(State or other jurisdiction of
incorporation or organization)
|
33-0091377
(I.R.S. employer
identification no.) |
|
4600 South Syracuse Street, Suite 500
Denver, Colorado
(Address of principal executive offices)
|
80237
(Zip code) |
Debt Securities
(Title of the indenture securities)
| 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. |
| Name |
Address |
| |
|
| Comptroller of the Currency United States Department of the Treasury |
Washington, DC 20219 |
| |
|
| Federal Reserve Bank |
San Francisco, CA 94105 |
| |
|
| Federal Deposit Insurance Corporation |
Washington, DC 20429 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of
the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses
below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act").
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known
as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with
Registration Statement No.333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed
with Registration Statement No.333-152875). |
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement
No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration
Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements
of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements
of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws
of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago, and State of Illinois, on the 7th day of February, 2023.
| |
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. |
| |
| |
By: |
/s/ |
Ann M. Dolezal |
| |
|
Name: |
Ann M. Dolezal |
| |
|
Title: |
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles,
CA 90071
At the close of business September 30, 2022, published in accordance
with Federal regulatory authority instructions.
| | |
Dollar
amounts | |
| | |
in
thousands | |
| ASSETS | |
| |
| | |
| |
| Cash
and balances due from | |
| | |
| depository institutions: | |
| | |
| Noninterest-bearing
balances and currency and coin | |
| 52,916 | |
| Interest-bearing
balances | |
| 444,180 | |
| Securities: | |
| | |
| Held-to-maturity
securities | |
| 0 | |
| Available-for-sale
debt securities | |
| 511 | |
| Equity
securities with readily determinable fair values not held for trading | |
| 0 | |
| Federal
funds sold and securities | |
| | |
| purchased under agreements to resell: | |
| | |
| Federal
funds sold in domestic offices | |
| 0 | |
| Securities
purchased under agreements to resell | |
| 0 | |
| Loans
and lease financing receivables: | |
| | |
| Loans
and leases held for sale | |
| 0 | |
| Loans
and leases, held for investment | |
| 0 | |
| LESS:
Allowance for loan and lease losses | |
| 0 | |
| Loans
and leases held for investment, net of allowance | |
| 0 | |
| Trading
assets | |
| 0 | |
| Premises
and fixed assets (including capitalized leases) | |
| 16,545 | |
| Other
real estate owned | |
| 0 | |
| Investments
in unconsolidated subsidiaries and associated companies | |
| 0 | |
| Direct
and indirect investments in real estate ventures | |
| 0 | |
| Intangible
assets | |
| 856,313 | |
| Other
assets | |
| 116,850 | |
| | |
| | |
| Total
assets | |
$ | 1,487,315 | |
| LIABILITIES | |
| | |
| | |
| | |
| Deposits: | |
| | |
| In
domestic offices | |
| 1,354 | |
| Noninterest-bearing | |
| 1,354 | |
| Interest-bearing | |
| 0 | |
| | |
| | |
| Federal
funds purchased and securities | |
| | |
| sold under agreements to repurchase: | |
| | |
| Federal
funds purchased in domestic offices | |
| 0 | |
| Securities
sold under agreements to repurchase | |
| 0 | |
| Trading
liabilities | |
| 0 | |
| Other
borrowed money: | |
| | |
| (includes
mortgage indebtedness and obligations under capitalized leases) | |
| 0 | |
| Not
applicable | |
| | |
| Not
applicable | |
| | |
| Subordinated
notes and debentures | |
| 0 | |
| Other
liabilities | |
| 269,752 | |
| Total
liabilities | |
| 271,106 | |
| Not
applicable | |
| | |
| | |
| | |
| EQUITY
CAPITAL | |
| | |
| | |
| | |
| Perpetual
preferred stock and related surplus | |
| 0 | |
| Common
stock | |
| 1,000 | |
| Surplus
(exclude all surplus related to preferred stock) | |
| 325,202 | |
| Not
available | |
| | |
| Retained
earnings | |
| 890,016 | |
| Accumulated
other comprehensive income | |
| -9 | |
| Other
equity capital components | |
| 0 | |
| Not
available | |
| | |
| Total
bank equity capital | |
| 1,216,209 | |
| Noncontrolling
(minority) interests in consolidated subsidiaries | |
| 0 | |
| Total
equity capital | |
| 1,216,209 | |
| Total
liabilities and equity capital | |
| 1,487,315 | |
I, Matthew J. McNulty, CFO of the above-named
bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared
in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge
and belief.
We, the undersigned directors (trustees), attest
to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been
examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate
Federal regulatory authority and is true and correct.
| |
Antonio I. Portuondo, President |
) |
|
| |
Michael P. Scott, Managing Director |
) |
Directors
(Trustees) |
| |
Kevin P. Caffrey, Managing Director |
) |
|
Exhibit 25.2
UNITED STATES
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) ¨
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
(Jurisdiction of incorporation
if not a U.S. national bank) |
95-3571558
(I.R.S. employer
identification no.) |
|
333 South Hope Street
Suite 2525
Los Angeles, California
(Address of principal executive offices) |
90071
(Zip code) |
Healthpeak OP,
LLC
(Exact name of obligor as specified in its charter)
Maryland
(State or other jurisdiction of
incorporation or organization) |
Applied For
(I.R.S. employer
identification no.) |
4600 South Syracuse Street, Suite 500
Denver, Colorado
(Address of principal executive offices) |
80237
(Zip code) |
Healthpeak Properties, Inc.
(Exact name of registrant as specified in its charter)
|
Maryland
(State or other jurisdiction of
incorporation or organization) |
33-0091377
(I.R.S. employer
identification no.) |
|
4600 South Syracuse Street, Suite 500
Denver, Colorado
(Address of principal executive offices) |
80237
(Zip code) |
Debt Securities
and Guarantees of Debt Securities
(Title of the indenture securities)
| 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. |
| Name |
Address |
| Comptroller of the Currency United States Department of the Treasury |
Washington, DC 20219 |
| |
|
| Federal Reserve Bank |
San Francisco, CA 94105 |
| |
|
| Federal Deposit Insurance Corporation |
Washington, DC 20429 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If the obligor is an affiliate of
the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses
below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act").
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known
as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with
Registration Statement No.333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed
with Registration Statement No.333-152875). |
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement
No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration
Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements
of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements
of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws
of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago, and State of Illinois, on the 7th day of February, 2023.
| |
THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A. |
| |
|
| |
By: |
/s/ |
Ann M. Dolezal |
| |
|
Name: |
Ann M. Dolezal |
| |
|
Title: |
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles,
CA 90071
At the close of business September 30, 2022, published
in accordance with Federal regulatory authority instructions.
| ASSETS | |
Dollar amounts
in thousands | |
| Cash and balances due from depository institutions: | |
| |
| Noninterest-bearing balances and currency and coin | |
| 52,916 | |
| Interest-bearing balances | |
| 444,180 | |
| Securities: | |
| | |
| Held-to-maturity securities | |
| 0 | |
| Available-for-sale debt securities | |
| 511 | |
| Equity securities with readily determinable fair values not held for trading | |
| 0 | |
| Federal funds sold and securities | |
| | |
| purchased under agreements to resell: | |
| | |
| Federal funds sold in domestic offices | |
| 0 | |
| Securities purchased under agreements to resell | |
| 0 | |
| Loans and lease financing receivables: | |
| | |
| Loans and leases held for sale | |
| 0 | |
| Loans and leases, held for investment | |
| 0 | |
| LESS: Allowance for loan and lease losses | |
| 0 | |
| Loans and leases held for investment, net of
allowance | |
| 0 | |
| Trading assets | |
| 0 | |
| Premises and fixed assets (including capitalized leases) | |
| 16,545 | |
| Other real estate owned | |
| 0 | |
| Investments in unconsolidated subsidiaries and associated companies | |
| 0 | |
| Direct and indirect investments in real estate ventures | |
| 0 | |
| Intangible assets | |
| 856,313 | |
| Other assets | |
| 116,850 | |
| | |
| | |
| Total assets | |
$ | 1,487,315 | |
| LIABILITIES | |
| |
| Deposits: | |
| |
| In domestic offices | |
| 1,354 | |
| Noninterest-bearing | |
| 1,354 | |
| Interest-bearing | |
| 0 | |
| | |
| | |
| Federal funds purchased and securities | |
| | |
| sold under agreements to repurchase: | |
| | |
| Federal funds purchased in domestic offices | |
| 0 | |
| Securities sold under agreements to repurchase | |
| 0 | |
| Trading liabilities | |
| 0 | |
| Other borrowed money: | |
| | |
| (includes mortgage indebtedness and obligations under capitalized leases) | |
| 0 | |
| Not applicable | |
| | |
| Not applicable | |
| | |
| Subordinated notes and debentures | |
| 0 | |
| Other liabilities | |
| 269,752 | |
| Total liabilities | |
| 271,106 | |
| Not applicable | |
| | |
| | |
| | |
| EQUITY CAPITAL | |
| | |
| | |
| | |
| Perpetual preferred stock and related surplus | |
| 0 | |
| Common stock | |
| 1,000 | |
| Surplus (exclude all surplus related to preferred stock) | |
| 325,202 | |
| Not available | |
| | |
| Retained earnings | |
| 890,016 | |
| Accumulated other comprehensive income | |
| -9 | |
| Other equity capital components | |
| 0 | |
| Not available | |
| | |
| Total bank equity capital | |
| 1,216,209 | |
| Noncontrolling (minority) interests in consolidated subsidiaries | |
| 0 | |
| Total equity capital | |
| 1,216,209 | |
| Total liabilities and equity capital | |
| 1,487,315 | |
I, Matthew J. McNulty, CFO of the above-named bank
do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared
in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and
belief.
We, the undersigned directors (trustees), attest
to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined
by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
| Antonio I. Portuondo, President |
) |
|
| Michael P. Scott, Managing Director |
) |
Directors (Trustees) |
| Kevin P. Caffrey, Managing Director |
) |
|
Exhibit 107
Calculation of Filing
Fee Table
Form S-3
(Form Type)
Healthpeak
Properties, Inc.
Healthpeak
OP, LLC
(Exact Name of Registrant
as Specified in its Charter)
Table 1: Newly Registered
Securities
| |
Security
Type
|
|
Security Class Title
(1) |
|
Fee
Calculation
Rule |
|
Amount Registered |
|
Proposed
Maximum
Offering
Price
Per Unit |
|
Maximum
Aggregate
Offering Price |
|
Fee
Rate |
|
Amount
of
Registration
Fee(1) |
| |
Healthpeak
Properties, Inc. |
|
|
|
|
|
|
|
|
|
|
|
|
Fees
to be
Paid |
Equity |
|
Common
Stock |
|
Rule
456(b) and
Rule 457(r) |
|
(1)(2) |
|
(1)(2) |
|
(1)(2) |
|
(3) |
|
(3) |
| Equity |
|
Preferred
Stock |
|
Rule
456(b) and
Rule 457(r) |
|
(1)(2) |
|
(1)(2) |
|
(1)(2) |
|
(3) |
|
(3) |
| Debt
|
|
Debt
Securities |
|
Rule
456(b) and
Rule 457(r) |
|
(1)(2) |
|
(1)(2) |
|
(1)(2) |
|
(3) |
|
(3) |
| Debt |
|
Guarantees
of Debt Securities (1)(5) |
|
Rule
456(b) and
Rule 457(r) |
|
(1)(2) |
|
(1)(2) |
|
(1)(2) |
|
(3) |
|
(3) |
| Other |
|
Depositary
Shares (1)(4) |
|
Rule
456(b) and
Rule 457(r) |
|
(1)(2) |
|
(1)(2) |
|
(1)(2) |
|
(3) |
|
(3) |
| Other |
|
Warrants
|
|
Rule
456(b) and
Rule 457(r) |
|
(1)(2) |
|
(1)(2) |
|
(1)(2) |
|
(3) |
|
(3) |
| Healthpeak
OP, LLC |
|
|
|
|
|
|
|
|
|
|
|
|
| Debt |
|
Debt
Securities |
|
Rule
456(b) and
Rule 457(r) |
|
(1)(2) |
|
(1)(2) |
|
(1)(2) |
|
(3) |
|
(3) |
| Debt |
|
Guarantees
of Debt Securities (1)(6) |
|
Rule
456(b) and
Rule 457(r) |
|
(1)(2) |
|
(1)(2) |
|
(1)(2) |
|
(3) |
|
(3) |
Fees
Previously
Paid |
N/A |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
|
— |
| |
Total
Offering Amounts |
|
|
|
|
|
|
|
|
| |
Total
Fees Previously Paid |
|
|
|
|
|
|
|
— |
| |
Total
Fee Offsets |
|
|
|
|
|
|
|
— |
| |
Net
Fee Due |
|
|
|
|
|
|
|
— |
| (1) |
Omitted pursuant to Form S-3 General Instruction II.E. |
| (2) |
Separate consideration may or may not be received for securities that are issuable on exercise,
conversion or exchange of other securities or that are represented by depositary shares. An unspecified number of the securities
of each identified class of securities is being registered for possible issuance from time to time at indeterminate prices. |
| (3) |
Deferred in reliance upon Rules 456(b) and 457(r) under the Securities Act of 1933, as amended. |
| (4) |
Each depositary share will be issued under a deposit agreement, will represent an interest in a
fractional share of preferred stock and will be evidenced by a depositary receipt. |
| (5) |
Healthpeak Properties, Inc. will fully and unconditionally guarantee debt securities issued by
Healthpeak OP, LLC. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantees of debt securities
being registered. |
| (6) |
Healthpeak OP, LLC may fully and unconditionally guarantee debt securities issued by Healthpeak
Properties, Inc. In accordance with Rule 457(n), no separate fee is payable with respect to the guarantees of debt securities being
registered. |
![[MISSING IMAGE: lg_healthpeakreg-bw.jpg]](https://content.edgar-online.com/edgar_conv_img/2023/02/13/0001104659-23-018717_lg_healthpeakreg-bw.jpg)