Sabra Health Care REIT, Inc 8-K, filed Sep 30, 2021
Sabra Health Care REIT, Inc. (SBRA)
About this 8-K
Sabra Health Care REIT, Inc filed this 8-K on September 30, 2021.
Items reported
- Item 1.01: Entered into a material agreement
- Item 8.01: Other events
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
(Exact Name of Registrant as Specified in Its Charter)
| (State of Incorporation) | (Commission File Number) |
(I.R.S. Employer Identification No.) |
| |
||||
| (Address of Principal Executive Offices) | (Zip Code) | |||
(Registrant’s Telephone Number, Including Area Code)
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class |
Trading symbol(s) |
Name of each exchange on which registered | ||
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company
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 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
Overview
On September 30, 2021, Sabra Health Care Limited Partnership (the “Issuer”), a Delaware limited partnership and subsidiary of Sabra Health Care REIT, Inc. (“Sabra”), completed an underwritten public offering of $800,000,000 aggregate principal amount of 3.200% senior notes due 2031 (the “2031 Notes”) pursuant to an indenture, dated September 30, 2021 (the “Base Indenture”), among the Issuer, Sabra, and Wells Fargo Bank, National Association, as Trustee (the “Trustee”), as supplemented by a first supplemental indenture, dated September 30, 2021 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Issuer, Sabra, and the Trustee.
The net proceeds from the sale of the 2031 Notes were approximately $784.0 million, after deducting underwriting discounts and estimated offering expenses. The Issuer will use a portion of the net proceeds from the 2031 Notes offering to redeem all of the Issuer’s 4.80% senior notes due 2024 (the “2024 Notes”) and repay approximately $345.0 million of its U.S. dollar term loans maturing on September 9, 2023, and the remaining net proceeds to fund future investments and/or for general corporate purposes. Pending these uses, the Issuer may temporarily use net proceeds designated for such purposes to repay borrowings outstanding on its unsecured revolving credit facility and/or invest in interest-bearing accounts and short-term, interest-bearing securities. As previously disclosed, on September 22, 2021, the Issuer delivered to Wells Fargo Bank, National Association, as trustee under the indenture governing the 2024 Notes, an irrevocable notice of redemption for all of the outstanding 2024 Notes (CUSIP No. 78572XAF8). The 2024 Notes are redeemable at a cash redemption price equal to 100.00% of the principal amount being redeemed plus a “make-whole” premium calculated in accordance with the indenture governing the 2024 Notes, plus accrued and unpaid interest thereon to, but not including, the redemption date of October 7, 2021 (the “Redemption Date”). The Issuer’s obligation to complete the redemption of the 2024 Notes on the Redemption Date is not subject to any condition precedent. Upon completion of the redemption, no 2024 Notes will remain outstanding.
First Supplemental Indenture and the 2031 Notes
Interest and Optional Redemption. The 2031 Notes accrue interest at a rate of 3.200% per annum payable semiannually in arrears on June 1 and December 1 of each year, commencing on June 1, 2022. Interest will accrue on the 2031 Notes from September 30, 2021. The 2031 Notes mature on December 1, 2031. The Issuer may redeem some or all of the 2031 Notes prior to September 1, 2031, at a price equal to 100% of the principal amount, together with any accrued and unpaid interest to, but not including, the redemption date, plus a “make-whole” premium (as described in the First Supplemental Indenture). The Issuer may also redeem the 2031 Notes on or after September 1, 2031, at a price equal to 100% of the principal amount, together with any accrued and unpaid interest to, but not including, the redemption date.
Guarantee. The 2031 Notes are fully and unconditionally guaranteed on a senior unsecured basis, by Sabra.
Ranking. The 2031 Notes are senior unsecured obligations of the Issuer and rank senior in right of payment to all of the existing and future subordinated indebtedness of the Issuer and equal in right of payment with all other existing and future senior unsecured indebtedness of the Issuer, including indebtedness under the Fifth Amended and Restated Credit Agreement, dated as of September 9, 2019 (as amended, the “Credit Agreement”), by and among the Issuer, Sabra and the other parties thereto, and the Issuer’s outstanding senior unsecured notes. The 2031 Notes are effectively subordinated to all of the Issuer’s and Sabra’s secured indebtedness to the extent of the value of the assets securing such debt, including mortgage indebtedness, and are structurally subordinated to all indebtedness of any of Sabra’s subsidiaries (other than the Issuer). The guarantee by Sabra is a senior unsecured obligation of Sabra and ranks senior in right of payment to all existing and future subordinated indebtedness of Sabra and equal in right of payment with all existing and future senior unsecured indebtedness of Sabra, including the guarantees of obligations under the Credit Agreement and Sabra’s and the Issuer’s outstanding senior unsecured notes. The guarantee by Sabra will be effectively subordinated to any secured indebtedness of Sabra, to the extent of the value of the assets securing such indebtedness, and is structurally subordinated to all indebtedness of any of Sabra’s subsidiaries (other than the Issuer).
Other Covenants. The Indenture contains other restrictive covenants that, among other things, limit the ability of Sabra and its subsidiaries (including the Issuer) to: (i) incur or guarantee unsecured indebtedness; (ii) incur or guarantee secured indebtedness; and (iii) merge or consolidate or sell all or substantially all of their assets. In addition, the Indenture requires Sabra and its subsidiaries to maintain Total Unencumbered Assets (as defined in the First Supplemental Indenture) of not less than 150% of the aggregate outstanding principal amount of the Unsecured Indebtedness (as defined in the First Supplemental Indenture) of Sabra and its subsidiaries on a consolidated basis. All of these covenants are subject to a number of important limitations and exceptions under the Indenture.
Events of Default. The Indenture also provides for customary events of default, including, but not limited to, the failure to make payments of interest or premium, if any, on, or principal of, the 2031 Notes, the failure to comply with certain covenants and agreements specified in the Indenture for a period of time after notice has been provided, the acceleration of other indebtedness resulting from the failure to pay principal on such other indebtedness prior to its maturity, and certain events of insolvency. If any event of default occurs, the principal of, premium, if any, and accrued interest on all the then outstanding 2031 Notes may become due and payable immediately.
Amendment to Underwriting Agreement
On September 30, 2021, in connection with the completion of the underwritten public offering of the 2031 Notes, the Issuer and Sabra entered into Amendment No. 1, dated as of September 30, 2021, to the Underwriting Agreement, dated as of September 21, 2021, (the “Amendment No. 1 to the Underwriting Agreement”) with Wells Fargo Securities, LLC, BofA Securities, Inc., Credit Agricole Securities (USA) Inc. and J.P. Morgan Securities, LLC, as representatives of the several underwriters named therein, to correct certain typographical errors contained in the original underwriting agreement. The foregoing summary of Amendment No. 1 to the Underwriting Agreement, the Indenture and the 2031 Notes is a summary only and is qualified in its entirety by reference to Amendment No. 1 to the Underwriting Agreement, the Base Indenture, the First Supplemental Indenture and the form of the 2031 Notes, which are filed as Exhibits 1.1, 4.1, 4.2 and 4.3, respectively, to this Current Report on Form 8-K and are incorporated by reference into this Item 1.01.
| Item 8.01 | Other Events. |
2031 Notes Offering
The public offering of the 2031 Notes was registered under the Securities Act of 1933, as amended, pursuant to an effective Registration Statement on Form S-3 (File No. 333-235449) filed with the Securities and Exchange Commission (the “SEC”) on December 11, 2019, a base prospectus, dated December 11, 2019, included as part of the registration statement, and a prospectus supplement, dated September 21, 2021, filed with the SEC on September 22, 2021 pursuant to Rule 424(b) under the Securities Act of 1933, as amended. In connection with the filing of the prospectus supplement, Sabra is filing as Exhibits 5.1 and 5.2 to this Current Report on Form 8-K the opinions of Venable LLP and O’Melveny & Myers LLP regarding the validity of the 2031 Notes and the related guarantee by Sabra.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| SABRA HEALTH CARE REIT, INC. | ||
| /s/ Harold W. Andrews, Jr. | ||
| Name: | Harold W. Andrews, Jr. | |
| Title: | Executive Vice President, Chief Financial Officer and Secretary | |
Dated: September 30, 2021
Exhibit 1.1
EXECUTION VERSION
Sabra Health Care REIT, Inc.
Sabra Health Care Limited Partnership
$800,000,000 3.200% Senior Notes due 2031
AMENDMENT NO. 1 TO THE UNDERWRITING AGREEMENT
September 30, 2021
Wells Fargo Securities, LLC
BofA Securities, Inc.
Credit Agricole Securities (USA) Inc.
J.P. Morgan Securities LLC
As Representatives of the several Underwriters
named in Schedule A to the
Underwriting Agreement (as defined below)
Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
BofA Securities, Inc.
One Bryant Park
New York, New York 10036
Credit Agricole Securities (USA) Inc.
1301 Avenue of the Americas
New York, New York 10019
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement (the “Underwriting Agreement”), dated as of September 21, 2021, among Sabra Health Care REIT, Inc., a Maryland corporation (the “Company”), Sabra Health Care Limited Partnership, a Delaware limited partnership (the “Issuer”) and Wells Fargo Securities, LLC, BofA Securities, Inc., Credit Agricole Securities (USA) Inc. and J.P. Morgan Securities LLC, as representatives (collectively, the “Representatives”) of the Underwriters named in Schedule A thereto (the “Underwriters”). Capitalized terms used herein but not defined herein have the meanings ascribed thereto in the Underwriting Agreement.
The parties hereto hereby agree as follows:
| 1. | The Underwriting Agreement shall be amended by replacing “The Notes will be issued pursuant to an indenture dated as of May 23, 2013 (the “Base Indenture”), as supplemented by a tenth supplemental indenture, to be dated as of the Closing Date (as defined below) (the “Tenth Supplemental Indenture” and together with the Base Indenture, the “Indenture”), among the Issuer, the Company and Wells Fargo Bank, N.A., as trustee (the “Trustee”)” in the second paragraph thereof with “The Notes will be issued pursuant to an indenture to be dated as of the Closing Date (as defined below) (the “Base Indenture”), as supplemented by a first supplemental |
| indenture, to be dated as of the Closing Date (the “First Supplemental Indenture” and together with the Base Indenture, the “Indenture”), among the Issuer, the Company and Wells Fargo Bank, N.A., as trustee (the “Trustee”)”. |
| 2. | The Underwriting Agreement shall be amended by replacing “Tenth Supplemental Indenture” in Section 1(f) thereof with “First Supplemental Indenture”. |
| 3. | The Underwriting Agreement shall be amended by replacing “pursuant to Section 11.1 of the 2024 Notes Indenture (as defined below), by the Issuer to redeem all of the Issuer’s outstanding 4.80% Senior Notes due 2024 (the “2024 Notes”), issued under the Base Indenture, as supplemented by an eighth supplemental indenture dated as of May 29, 2019 (together with the Base Indenture, the “2024 Notes Indenture”)” in Section 6(k) thereof with “pursuant to Section 11.1 of the 2024 Notes Indenture (as defined below), by the Issuer to redeem all of the Issuer’s outstanding 4.80% Senior Notes due 2024 (the “2024 Notes”), issued under a base indenture dated May 23, 2013, as supplemented by an eighth supplemental indenture dated as of May 29, 2019 (such base indenture, as so supplemented, the “2024 Notes Indenture”)”. |
| 4. | Except as specifically set forth herein, the provisions of the Underwriting Agreement and the Schedules and Annex attached thereto remain in full force and effect. This letter agreement shall not constitute an amendment or waiver of any provision of the Underwriting Agreement and shall not be construed as a waiver or consent to any further or future action on the part of the parties hereto, except to the extent expressly set forth herein. |
| 5. | This letter agreement and any claim, controversy or dispute arising under or related to this letter agreement, shall be governed by and construed in accordance with the laws of the State of New York. |
| 6. | This letter agreement may be executed in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. |
[Signature pages follow]
If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
| Very truly yours, | ||||
| SABRA HEALTH CARE REIT, INC. in its individual capacity and as the Guarantor | ||||
| By: | /s/ Harold W. Andrews, Jr. | |||
| Name: | Harold W. Andrews, Jr. | |||
| Title: | Executive Vice President, Chief Financial Officer and Secretary | |||
| SABRA HEALTH CARE LIMITED PARTNERSHIP | ||||
| By: Sabra Health Care REIT, Inc., its General Partner | ||||
| By: | /s/ Harold W. Andrews, Jr. | |||
| Name: | Harold W. Andrews, Jr. | |||
| Title: | Executive Vice President, Chief Financial Officer and Secretary | |||
[Signature Page to Amendment No. 1 to the Underwriting Agreement]
The foregoing agreement is hereby confirmed and accepted by the Representatives in New York, New York as of the date first above written.
WELLS FARGO SECURITIES, LLC
BOFA SECURITIES, INC.
CREDIT AGRICOLE SECURITIES (USA) INC.
J.P. MORGAN SECURITIES LLC
Acting as Representatives of the several Underwriters
named in Schedule A to the
Underwriting Agreement
| Wells Fargo Securities, LLC | ||||
| By: | /s/ Carolyn Hurley | |||
| Name: | Carolyn Hurley | |||
| Title: | Managing Director | |||
| BofA Securities, Inc. | ||||
| By: | /s/ Douglas Muller | |||
| Name: | Douglas Muller | |||
| Title: | Managing Director | |||
| Credit Agricole Securities (USA) Inc. | ||||
| By: | /s/ Ivan Hrazdira | |||
| Name: | Ivan Hrazdira | |||
| Title: | Managing Director | |||
| J.P. Morgan Securities LLC | ||||
| By: | /s/ Som Bhattacharyya | |||
| Name: | Som Bhattacharyya | |||
| Title: | Executive Director | |||
[Signature Page to Amendment No. 1 to the Underwriting Agreement]
Exhibit 4.1
EXECUTION VERSION
SABRA HEALTH CARE LIMITED PARTNERSHIP,
as Issuer,
SABRA HEALTH CARE REIT, INC.,
as Parent and Guarantor,
AND
WELLS FARGO BANK, NATIONAL ASSOCIATION, as TRUSTEE
INDENTURE
Dated as of September 30, 2021
Debt Securities
| ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 | |||||
| Section 1.1 |
Definitions |
1 | ||||
| Section 1.2 |
Other Definitions |
6 | ||||
| Section 1.3 |
Compliance Certificates and Opinions |
6 | ||||
| Section 1.4 |
Form of Documents Delivered to Trustee |
7 | ||||
| Section 1.5 |
Acts of Holders |
7 | ||||
| Section 1.6 |
Notices, Etc., to Trustee, Issuer and Guarantor |
8 | ||||
| Section 1.7 |
Notice to Holders of Securities; Waiver |
9 | ||||
| Section 1.8 |
Language of Notices, Etc. |
9 | ||||
| Section 1.9 |
Conflict with Trust Indenture Act |
9 | ||||
| Section 1.10 |
Effect of Headings and Table of Contents |
9 | ||||
| Section 1.11 |
Successors and Assigns |
9 | ||||
| Section 1.12 |
Separability Clause |
9 | ||||
| Section 1.13 |
Benefits of Indenture |
9 | ||||
| Section 1.14 |
Governing Law |
10 | ||||
| Section 1.15 |
Legal Holidays |
10 | ||||
| Section 1.16 |
Waiver of Jury Trial |
10 | ||||
| Section 1.17 |
Force Majeure |
10 | ||||
| Section 1.18 |
U.S.A. Patriot Act |
10 | ||||
| ARTICLE 2 SECURITY FORMS |
10 | |||||
| Section 2.1 |
Forms Generally |
10 | ||||
| Section 2.2 |
Form of Trustee’s Certificate of Authentication |
11 | ||||
| Section 2.3 |
Securities in Global Form |
11 | ||||
| ARTICLE 3 THE SECURITIES |
11 | |||||
| Section 3.1 |
Amount Unlimited; Issuable in Series |
11 | ||||
| Section 3.2 |
Denominations |
14 | ||||
| Section 3.3 |
Execution, Authentication, Delivery and Dating |
14 | ||||
| Section 3.4 |
Temporary Securities |
15 | ||||
| Section 3.5 |
Registration, Transfer and Exchange |
16 | ||||
| Section 3.6 |
Mutilated, Destroyed, Lost and Stolen Securities |
17 | ||||
| Section 3.7 |
Payment of Interest; Interest Rights Preserved |
18 | ||||
| Section 3.8 |
Persons Deemed Owners |
19 | ||||
| Section 3.9 |
Cancellation |
19 | ||||
| Section 3.10 |
Computation of Interest; Calculations |
19 | ||||
| Section 3.11 |
CUSIP Numbers |
19 | ||||
| ARTICLE 4 SATISFACTION AND DISCHARGE |
20 | |||||
| Section 4.1 |
Satisfaction and Discharge of Indenture |
20 | ||||
| Section 4.2 |
Application of Trust Money |
21 | ||||
| ARTICLE 5 REMEDIES |
21 | |||||
| Section 5.1 |
Events of Default |
21 | ||||
| Section 5.2 |
Acceleration of Maturity; Rescission and Annulment |
22 | ||||
| Section 5.3 |
Collection Suit by Trustee |
22 | ||||
| Section 5.4 |
Trustee May File Proofs of Claim |
23 | ||||
| Section 5.5 |
Other Remedies |
23 | ||||
| Section 5.6 |
Priorities |
23 | ||||
| Section 5.7 |
Limitation on Suits |
23 | ||||
| Section 5.8 |
Rights of Holders To Receive Payment |
24 | ||||
i
| Section 5.9 |
Restoration of Rights and Remedies |
24 | ||||
| Section 5.10 |
Control by Majority |
24 | ||||
| Section 5.11 |
Waiver of Past Defaults |
24 | ||||
| Section 5.12 |
Undertaking for Costs |
25 | ||||
| ARTICLE 6 THE TRUSTEE |
25 | |||||
| Section 6.1 |
Certain Duties and Responsibilities |
25 | ||||
| Section 6.2 |
Notice of Defaults |
26 | ||||
| Section 6.3 |
Certain Rights of Trustee |
26 | ||||
| Section 6.4 |
Not Responsible for Recitals or Issuance of Securities |
27 | ||||
| Section 6.5 |
May Hold Securities |
27 | ||||
| Section 6.6 |
Money Held in Trust |
27 | ||||
| Section 6.7 |
Compensation and Reimbursement |
28 | ||||
| Section 6.8 |
Disqualifications; Conflicting Interests |
28 | ||||
| Section 6.9 |
Corporate Trustee Required; Eligibility |
28 | ||||
| Section 6.10 |
Resignation and Removal; Appointment of Successor |
29 | ||||
| Section 6.11 |
Acceptance of Appointment by Successor |
30 | ||||
| Section 6.12 |
Merger, Conversion, Consolidation or Succession to Business |
30 | ||||
| Section 6.13 |
Preferential Collection of Claims Against the Issuer and the Guarantor |
31 | ||||
| Section 6.14 |
Appointment of Authenticating Agent |
31 | ||||
| ARTICLE 7 HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
32 | |||||
| Section 7.1 |
Holder Lists |
32 | ||||
| Section 7.2 |
Communications to Holders |
32 | ||||
| Section 7.3 |
Reports by Trustee |
32 | ||||
| Section 7.4 |
Reports by the Issuer and the Guarantor |
33 | ||||
| ARTICLE 8 GUARANTEE |
33 | |||||
| Section 8.1 |
Guarantee |
33 | ||||
| Section 8.2 |
Limitation on Guarantor Liability |
34 | ||||
| ARTICLE 9 SUPPLEMENTAL INDENTURE |
34 | |||||
| Section 9.1 |
Supplemental Indentures without Consent of Holders |
34 | ||||
| Section 9.2 |
Supplemental Indentures with Consent of Holders |
35 | ||||
| Section 9.3 |
Compliance with the Trust Indenture Act |
36 | ||||
| Section 9.4 |
Revocation and Effect of Consents |
36 | ||||
| Section 9.5 |
Notation on or Exchange of Securities |
37 | ||||
| Section 9.6 |
Trustee To Sign Amendments, Etc. |
37 | ||||
| ARTICLE 10 COVENANTS |
37 | |||||
| Section 10.1 |
Payment of Securities |
37 | ||||
| Section 10.2 |
Maintenance of Office or Agency |
37 | ||||
| Section 10.3 |
Money for Securities Payments To Be Held in Trust |
38 | ||||
| Section 10.4 |
Compliance Certificate; Notice of Default |
38 | ||||
| Section 10.5 |
Corporate Existence |
39 | ||||
| ARTICLE 11 REDEMPTION OF SECURITIES |
39 | |||||
| Section 11.1 |
Applicability of Article |
39 | ||||
| Section 11.2 |
Notice to Trustee |
39 | ||||
| Section 11.3 |
Selection of Securities To Be Redeemed |
39 | ||||
ii
| Section 11.4 |
Notice of Redemption |
40 | ||||
| Section 11.5 |
Deposit of Redemption Price |
40 | ||||
| Section 11.6 |
Effect of Notice of Redemption |
41 | ||||
| Section 11.7 |
Securities Redeemed in Part |
41 | ||||
| ARTICLE 12 SINKING FUNDS |
41 | |||||
| Section 12.1 |
Applicability of Article |
41 | ||||
| Section 12.2 |
Satisfaction of Sinking Fund Payments with Securities |
41 | ||||
| Section 12.3 |
Redemption of Securities for Sinking Fund |
42 | ||||
| ARTICLE 13 LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
42 | |||||
| Section 13.1 |
Issuer’s Option to Effect Legal Defeasance or Covenant Defeasance |
42 | ||||
| Section 13.2 |
Legal Defeasance and Discharge |
42 | ||||
| Section 13.3 |
Covenant Defeasance |
43 | ||||
| Section 13.4 |
Conditions to Legal Defeasance or Covenant Defeasance |
43 | ||||
| Section 13.5 |
Application of Trust Money |
44 | ||||
| Section 13.6 |
Repayment to the Issuer |
44 | ||||
| Section 13.7 |
Reinstatement |
44 | ||||
iii
Reconciliation and tie between
Trust Indenture Act of 1939
and Indenture
| Trust Indenture Act Section |
Indenture Section | |||
| § 310 (a)(1) |
6.9 | |||
| (a)(2) |
6.9 | |||
| (a)(3) |
Not Applicable | |||
| (a)(4) |
Not Applicable | |||
| (a)(5) |
6.9 | |||
| (b) |
6.8, 6.10 | |||
| § 311 (a) |
6.13 | |||
| (b) |
6.13 | |||
| § 312 (a) |
7.1 | |||
| (b) |
7.2(a) | |||
| (c) |
7.2(b) | |||
| § 313 (a) |
7.3(a) | |||
| (b)(1) |
Not Applicable | |||
| (b)(2) |
7.3(a) | |||
| (c) |
7.3(a) | |||
| (d) |
7.3(b) | |||
| § 314 (a) |
7.4; 10.4(a) | |||
| (b) |
Not Applicable | |||
| (c)(1) |
1.3 | |||
| (c)(2) |
1.3 | |||
| (c)(3) |
Not Applicable | |||
| (d) |
Not Applicable | |||
| (e) |
1.3 | |||
| § 315 (a) |
6.1(a) | |||
| (b) |
6.2 | |||
| (c) |
6.1(b) | |||
| (d) |
6.1(c) | |||
| (d)(1) |
6.1(a)(i), (c)(i) | |||
| (d)(2) |
6.1(c)(ii) | |||
| (d)(3) |
6.1(c)(iii) | |||
| (e) |
5.12 | |||
| § 316 (a) |
1.1 | |||
| (a)(1)(A) |
5.2, 5.10 | |||
| (a)(1)(B) |
5.11 | |||
| (a)(2) |
Not Applicable | |||
| (b) |
5.8 | |||
| (c) |
1.5(d) | |||
| § 317 (a)(1) |
5.3 | |||
| (a)(2) |
5.4 | |||
| (b) |
10.3 | |||
| § 318 (a) |
1.9 | |||
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
iv
INDENTURE, dated as of September 30, 2021, between Sabra Health Care Limited Partnership (the “Issuer”) and Sabra Health Care REIT, Inc., a Maryland corporation (the “Parent” or the “Guarantor”), each having its principal office at 18500 Von Karman Avenue, Suite 500, Irvine, California, 92612, and Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, as Trustee (the “Trustee”).
Recitals of The Issuer
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other evidences of indebtedness, unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided;
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture and all things necessary to make this Indenture a valid and legally binding agreement of the Issuer, in accordance with its terms, have been done; and
WHEREAS, the Guarantor has duly authorized the execution and delivery of this Indenture to provide for the guarantee from time to time of the Issuer’s unsecured debentures, notes or other evidences of indebtedness, and has duly authorized the execution and delivery of this Indenture and all things necessary to make this Indenture a valid and legally binding agreement of the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH: For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the benefit of each other and the equal and proportionate benefit of all Holders of the Securities or of series thereof, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 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) all other terms used herein that are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(c) the phrase “in writing” as used herein shall be deemed to include .pdf attachments and other electronic means of transmission, unless otherwise indicated;
(d) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP; and
(e) 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.
“Act” when used with respect to any Holders has the meaning specified in Section 1.5.
“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”),
1
as applied to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Agent” means any Security Registrar, Paying Agent, or DTC Custodian.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Board of Directors” means as to any Person, the board of directors (or similar governing body) of such Person or any duly authorized committee thereof.
“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means a day other than a Saturday, Sunday or any other day on which banking institutions in New York City are authorized or required by law, regulation or executive order to close.
“Capital Stock” means (a) in the case of a corporation, corporate stock; (b) in the case of an association or business entity, any and all shares, interest, participations, rights or other equivalents (however designated and whether or not voting) of corporate stock, including each class of common stock and preferred stock of such person; and (c) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited).
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Corporate Trust Office” means the office or agency of the Trustee, at which at any particular time its corporate trust business relating to this Indenture shall be principally administered, which office at the date of original execution of this Indenture is located at 600 South 4th Street, 7th Floor, MAC: N9300-070, Minneapolis, MN 55415 Attention: Corporate Trust Services – Michael Tu/Sabra Health Care Limited Partnership Administrator, and with respect to Agent services such office shall also mean the office or agency of the Trustee located at 600 South 4th Street, 7th Floor, Minneapolis, MN 55415, Attention: Bondholder Communications, 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 office of any successor Trustee.
“corporation” means any corporation and any association, partnership, limited liability company or business trust. “Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.
“Depositary” or “Depository” means with respect to the Securities of any series issuable or issued in whole or in part in global form, the Person designated as Depositary or Depository by the Issuer pursuant to Section 3.1(c) until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary” or “Depository” shall mean or include each Person who is then a Depositary Depository hereunder, and if at any time there is more than one such Person, “Depositary” or “Depository” as used with respect to the Securities of any such series shall mean the “Depositary” or “Depository” with respect to the Securities of that series.
“Dollars” or “$” or any similar reference shall mean currency of the United States, which at the time shall be legal tender for the payment of public and private debts.
“DTC” means The Depository Trust Company.
2
“DTC Custodian” means the Trustee as custodian with respect to the global Securities or any successor entity thereto.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor statute or statutes thereto.
“Guarantee” means the guarantee of the Issuer’s obligations under the Securities of any applicable series by the Guarantor under this
“GAAP” means generally accepted accounting principles in the United States of America as in effect as of the date of any required calculation or determination, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the accounting profession. Except as otherwise specifically provided in this Indenture, all ratios and computations contained or referred to in this Indenture shall be computed in conformity with GAAP applied on a consistent basis. For clarity purposes, in determining whether a lease is a Capitalized Lease or an operating lease and whether interest expense exists, such determination shall be made in accordance with GAAP as reflected in and in effect on the date of the Audited Financial Statements for all purposes of the indenture, notwithstanding any change in GAAP relating thereto.
“Guarantor” means the Person named as the “Guarantor” in the first paragraph of this instrument 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” when used with respect to any Security means the Person in whose name the Security is registered in the Security Register.
“Indenture” means 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 the particular series of Securities established as contemplated by
“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.
“Interest Payment Date” means the Stated Maturity of an installment of interest on the applicable Securities.
“Issuer Request” and “Issuer Order” mean, respectively, a written request or order signed in the name of the Issuer by an Officer of the Issuer, and delivered to the Trustee.
“Maturity” when used with respect to any Security means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption or otherwise.
“Officer” means any of the following with respect to any Person: the Chairman of the Board of Directors, the Chief Executive Officer, the Chief Financial Officer, Chief Accounting Officer, Chief Operating Officer, the President, any Vice President, the Treasurer, any Assistant Treasurer, the Controller, the General Counsel or the Secretary or any Assistant Secretary of such Person.
“Officer’s Certificate” means a certificate signed on behalf of the Issuer by an Officer of the Issuer and delivered to the Trustee. Unless otherwise specified herein, such certificate shall include the statements provided for in Section 1.3.
3
“Opinion of Counsel” means a written opinion of legal counsel, who may (except as otherwise expressly provided in this Indenture) be an employee of or legal counsel to the Issuer, the Parent or other legal counsel acceptable to the Trustee. Unless otherwise specified herein, each such opinion shall include the statements provided for in Section 1.3 as required by the Trust Indenture Act.
“Original Issue Discount Security” means a Security, other than an Indexed Security, issued pursuant to this Indenture that provides for declaration of an amount less than the principal thereof to be due and payable upon acceleration pursuant to Section 5.2.
“Outstanding” when used with respect to Securities means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
| (i) | Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; |
| (ii) | Securities, or portions thereof, for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Issuer or the Guarantor) in trust or set aside and segregated in trust by the Issuer or the Guarantor (if the Issuer or the Guarantor shall act as its own Paying Agent) for the Holders of such Securities; provided, that, if such Securities 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; |
| (iii) | Securities as to which Legal Defeasance or Covenant Defeasance has been effected pursuant to Article 13, except to the extent provided in Article 13; |
| (iv) | (iv) Securities that have been paid pursuant to Section 3.6 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 the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Issuer; |
| (v) | Securities, or portions thereof, that have been paid pursuant to Article 4 or Section 10.1; and |
| (vi) | Securities converted into common stock or other equity interests in accordance with or as contemplated by this Indenture, if the terms of such Securities provide for convertibility as contemplated by Section 3.1; |
provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that would be due and payable, at the time of such determination, pursuant to the terms of such Original Issue Discount Security upon acceleration thereof pursuant to Section 5.02, (ii) the principal amount of any Indexed Security that may be counted in making such determination and that shall be deemed Outstanding for such purpose shall be equal to the principal amount of such Indexed Security at original issuance, unless otherwise provided in or pursuant to this Indenture, and (iii) Securities owned beneficially by the Issuer or any other obligor upon the Securities or any Affiliate (other than officers or directors of the Issuer or the Guarantor) of the Issuer or 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 request, demand, authorization, direction, notice, consent or waiver, only Securities that the Trustee 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 so to act with respect to such Securities and that the pledgee is not an Issuer or any other obligor upon the Securities or any Affiliate of the Issuer or such other obligor.
4
“Paying Agent” means any Person authorized by the Issuer to pay the principal of (and premium, if any) or interest on any Securities on behalf of the Issuer.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Place of Payment” when used with respect to the Securities of any series means the place or places where, subject to the provisions of Section 10.2, the principal of (and premium, if any) and interest on the Securities of that series are payable as specified as provided pursuant to Section 3.1.
“Predecessor Security” of any particular Security means 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 3.6 in exchange for or in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to evidence the same debt as the lost, destroyed, mutilated or stolen Security.
“Redemption Date” when used with respect to any Security to be redeemed means the date fixed for such redemption by or pursuant to this Indenture and the Security.
“Redemption Price” when used with respect to any Security to be redeemed means the price fixed for such redemption, payable in immediately available funds, pursuant to the provisions of this Indenture and the Security.
“Registered Security” means any Security established pursuant to Section 2.1 that is registered in the Security Register.
“Regular Record Date” for the interest payable on a Security on any Interest Payment Date means the date, if any, specified in such Security as the “Regular Record Date.”
“Responsible Officer” means, when used with respect to the Trustee or Paying Agent, any officer in the Corporate Trust Department of the Trustee, including any vice president, assistant vice president, trust officer or any other officer of such Trustee or Paying Agent, as the case may be, to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject and shall also mean any officer who shall have direct responsibility for the administration of this Indenture.
“Security” or “Securities” means any Security or Securities, as the case may be, authenticated and delivered under this Indenture.
“Special Record Date” for the payment of any Defaulted Interest on the Securities of any series means a date fixed by the Trustee pursuant to Section 3.7.
“Stated Maturity” when used with respect to any Security or any installment of principal thereof or interest thereon means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable; provided, that Stated Maturity shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“Subsidiary” means, with respect to any Person, any corporation, association or other business entity of which more than 50% of the voting power of the outstanding Voting Stock is owned, directly or indirectly, by such Person and one or more other Subsidiaries of such Person and the accounts of which would be consolidated with those of such Person in its consolidated financial statements in accordance with GAAP, if such statements were prepared as of such date.
“Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.
5
“Trustee” means the party named as such in this Indenture until a successor replaces it in accordance with the provisions of this Indenture and thereafter means such successor.
“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 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 depository 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 or other amount with respect to any such U.S. Government Obligation held by such custodian for the account of the holder of a depository 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 depository 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 or other amount with respect to the U.S. Government Obligation evidenced by such depository receipt.
“U.S.A. Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Pub. L. 107-56, as amended and signed into law October 26, 2001.
“Voting Stock” means with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person.
Section 1.2 Other Definitions.
| Term |
Defined in Section |
|||
| “Covenant Defeasance” |
13.3 | |||
| “Defaulted Interest” |
3.7 | |||
| “Event of Default” |
5.1 | |||
| “Issuer” |
Preamble | |||
| “Legal Defeasance” |
13.2 | |||
| “Parent” |
Preamble | |||
| “Security Register” |
3.5 | |||
| “Security Registrar” |
3.5 | |||
Section 1.3 Compliance Certificates and Opinions.
Upon any application or request by the Issuer to the Trustee to take any action under any provision of this Indenture, the Issuer shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officer’s Certificate and an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to Section 10.4) shall include:
(a) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;
(b) 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;
6
(c) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(d) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.4 Form of Documents Delivered to Trustee.
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. Any certificate or opinion of an officer of the Issuer 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 certificate or opinion is based are erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of the Issuer or the Guarantor, unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous. Any Opinion of Counsel may contain customary assumptions, qualifications, exceptions and limitations.
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.
Any certificate, statement or opinion of an officer of the Issuer or the Guarantor, or of counsel may be based insofar as it relates to accounting matters, upon a certificate or opinion of or representations by a firm of accountants or an accountant in the employ of the Issuer or the Guarantor, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall contain a statement that such firm is independent.
Section 1.5 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and the Issuer and any agent of the Trustee or the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner that the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
7
(c) The ownership of Securities and the principal amount and serial numbers of Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(d) If the Issuer shall solicit from the Holders of any Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer may, at its option, by Board Resolution, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Issuer shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such 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 for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided, that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, the Issuer or the Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.
Section 1.6 Notices, Etc., to Trustee, Issuer and Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(a) the Trustee by any Holder or by the Issuer shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate Trust Administration for Sabra Notes, or
(b) the Issuer or the Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, or overnight courier guaranteeing next day delivery, to the Issuer or Guarantor, as applicable, addressed to the Issuer or Guarantor, as applicable, attention of its chief financial officer, at the address of its principal office specified in the first paragraph of this instrument or, in each case, at any other address previously furnished in writing to the Trustee by the Issuer or the Guarantor.
The Trustee, Issuer and Guarantor, in their discretion, may elect to accept and act upon instructions or directions pursuant to this Indenture sent by e-mail, facsimile transmission or other similar electronic methods; provided, however, that (i) the party providing such written instructions, subsequent to such transmission of written instructions, shall provide the originally executed instructions or directions to the party receiving such instructions in a timely manner, and (ii) such originally executed instructions or directions shall be signed by an authorized representative of the party providing such instructions or directions. If the Trustee, Issuer or Guarantor elects to give e-mail or facsimile instructions (or instructions by a similar electronic method) and the party receiving the instructions in its discretion elects to act upon such instructions, the receiving party’s understanding of such instructions shall be deemed controlling. The party receiving the instructions shall not be liable for any losses, costs or expenses arising directly or indirectly from such party’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The party providing electronic instructions agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the party receiving such instructions, including without limitation the risk of the receiving party acting on unauthorized instructions, and the risk or interception and misuse by third parties.
8
Section 1.7 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein or in the form of Securities of any particular series pursuant to the provisions of this Indenture, where this Indenture provides for notice to Holders of any event, such notice shall be sufficiently given to Holders if in writing and mailed, first-class postage prepaid, to each Holder of a Security affected by such event, at his address as it appears in the Security Register (or, to the extent permitted or required by applicable DTC procedures or regulations, sent electronically), not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders of Securities is delivered electronically or given by mail, neither the failure to deliver electronically or mail such notice, nor any defect in any notice so delivered electronically or mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Securities. In the case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by electronic delivery or mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
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 of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 1.8 Language of Notices, Etc.
Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the English language, except that, if the Issuer so elects, any published notice may be in an official language of the country of publication.
Section 1.9 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under the Trust Indenture Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 1.10 Effect of Headings and Table of Contents.
The Article and Section headings herein, the Trust Indenture Act reconciliation, and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.11 Successors and Assigns.
All covenants and agreements in this Indenture by the Issuer and the Guarantor shall bind their respective successors and assigns, whether so expressed or not.
Section 1.12 Separability Clause.
In case any provision in this Indenture or the Securities or in the Guarantee shall be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 1.13 Benefits of Indenture.
Nothing in this Indenture or in the Securities or in the Guarantee, express or implied, shall give to any Person, other than the parties hereto, any Agent, any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
9
Section 1.14 Governing Law.
This Indenture, the Securities and the Guarantee shall be governed by and construed in accordance with the laws of the State of New York.
Section 1.15 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or the Securities other than a provision in the Securities that specifically states that such provision shall apply in lieu of this Section) payment of interest or principal (and premium, if any) need not be made at such Place of Payment on such date, but shall be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date or Redemption Date, or at the Stated Maturity, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 1.16 Waiver of Jury Trial.
EACH OF THE ISSUER, THE GUARANTOR, THE TRUSTEE AND EACH HOLDER BY ITS ACCEPTANCE THEREOF HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 1.17 Force Majeure.
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, any act or provision of any present or future law or regulation or governmental authority, labor disputes, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, disease, epidemic or pandemic, quarantine, national emergency or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, communications system failure, malware or ransomware or unavailability of the Federal Reserve Bank wire or telex system or other wire or other funds transfer system, or unavailability of any securities clearing system; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 1.18 U.S.A. Patriot Act.
The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties hereto agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
ARTICLE 2
SECURITY FORMS
Section 2.1 Forms Generally.
The Securities, if any, of each series and Securities in global form, if any, shall be in the form established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, shall have appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends
10
or endorsements placed thereon as may, consistently herewith, be determined by the officers of the Issuer executing such Securities, as evidenced by their execution of such Securities. If the forms of the Securities of any series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the written order contemplated by Section 3.3 for the authentication and delivery of such Securities.
Unless otherwise provided as contemplated by Section 3.1 with respect to any series of Securities, the Securities of each series shall be issuable in registered form without coupons.
The definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods on a steel engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers of the Issuer executing such Securities, as evidenced by their execution of such Securities.
The Guarantee of any applicable series of Securities shall be in the form established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, shall have appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the Officers of the Guarantor executing such Guarantee, as evidenced by their execution of such Guarantee.
Section 2.2 Form of Trustee’s Certificate of Authentication.
The Trustee’s Certificate of Authentication shall be in substantially the following form:
| This is one of the Securities of the series designated therein referred to in the within mentioned Indenture. | ||
| Wells Fargo Bank, National Association, as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
| Dated: |
| |
Section 2.3 Securities in Global Form.
If Securities of a series are issuable in whole or in part in global form, any such Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges or partial redemptions or increased to reflect the issuance of additional Securities. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons, as shall be specified therein or in the Issuer Order delivered to the Trustee pursuant to Section 3.3.
ARTICLE 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
11
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental hereto prior to the issuance of Securities of any series, any or all of the following as applicable:
(a) the title of the Securities and the series in which such Securities shall be included;
(b) the limit, if any, upon the aggregate principal amount of the Securities of such title and the Securities of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.4, 3.5, 3.6, 9.5 or 11.7);
(c) whether Securities of the series may be issued in whole or in part in global form and, if so, the identity of the Depositary for such Securities in global form, and the terms and conditions, if any, upon which interests in such Securities in global form may be exchanged, in whole or in part, for the individual Securities represented thereby;
(d) the date or dates on which the principal of such Securities is payable, including the principal amount due at Maturity or any Redemption Date, and whether the Securities will be issued as an Original Issue Discount Security;
(e) the rate or rates at which such Securities shall bear interest, if any, or method by which such rate or rates are determined, the date or dates from which such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest payable on Registered Securities on any Interest Payment Date, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;
(f) whether or not the Securities will be secured or unsecured, and the terms of any secured indebtedness;
(g) the place or places, if any, in addition to or other than the Corporate Trust Office, where the principal of (and premium, if any) and interest on, payable in respect of such Securities shall be payable, where such Securities may be surrendered for registration of transfer, where such Securities may be surrendered for exchange and where notice and demands to or upon the Issuer, in respect of such Securities and this Indenture, may be served and where notices to Holders pursuant to Section 1.7 will be published;
(h) the period or periods within which, the price or prices at which and the terms and conditions upon which such Securities may be redeemed, in whole or in part, at the option of the Issuer and, in furtherance thereof, any addition to, elimination of, replacement of or other change in Article 11;
(i) the obligation, if any, of the Issuer to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which or the date or dates on which, the price or prices at which, and other terms and conditions upon which Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(j) the denominations in which Securities of the series, if any, shall be issuable if other than denominations of $2,000 and any integral multiples of $1,000 in excess thereof;
(k) if other than the principal amount thereof, the portion of the principal amount of such Securities that shall be payable upon acceleration of the Maturity thereof pursuant to Section 5.2;
(l) whether the amount of payments of principal of (and premium, if any) or interest, if any, on the Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more currencies, currency units, composite currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
12
(m) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions;
(n) any addition to, elimination of, replacement of or other change in Article 5;
(o) the applicability of Article 13 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article 4 and/or Article 13;
(p) any addition to, elimination of, replacement of or other change in the covenants in Article 10;
(q) the currency, currencies or currency units in which payment of principal of (and premium, if any) or interest, if any, on any Securities of the series shall be payable if other than the currency of the United States of America;
(r) if the principal of (and premium, if any) or interest, if any, on any Securities of the series is to be payable, at the election of the Issuer or a Holder thereof, in one or more currencies or currency units other than that or those in which the Securities are stated to be payable, the currency, currencies or currency units in which principal of (and premium, if any) or interest, if any, on any Securities of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon which such election is to be made;
(s) whether the Securities will be guaranteed and the terms of any such Guarantee, the terms and conditions of the Guarantee and provisions for the accession of the Guarantor to certain obligations hereunder or any provisions for termination of the Guarantee, including any addition to, elimination of, replacement of or other change in Article 8;
(t) whether the Securities will be convertible into and/or exchangeable for Capital Stock or other securities or property of the Issuer or of any other Person, and if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions or changes to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof;
(u) whether the Securities will not be issued in a transaction registered under the Securities Act of 1933, as amended, and any restriction or condition on the transferability of the Securities of such series;
(v) if any of such Securities are to be issuable upon the exercise of warrants, and the time, manner and place for such Securities to be authenticated and delivered;
(w) any addition to, elimination of, replacement of or other change in Article 1, Article 6, Article 7, Article 8, Article 9 and Article 12; and
(x) any other terms of such Securities (which terms shall not be inconsistent with the provisions of this Indenture except as permitted by Section 9.1(d)).
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officer’s Certificate or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened for issuances of additional Securities of such series.
13
If any of the terms of the Securities of any series were established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Issuer and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of such series.
Section 3.2 Denominations.
Unless other denominations and amounts may from time to time be fixed by or pursuant to a Board Resolution, the Registered Securities of each series, if any, shall be issuable in registered form without coupons in denominations of $2,000 and any integral multiples of $1,000 in excess thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Issuer by an Officer of the Issuer. The signature of any Officer on the Securities may be manual or facsimile in the form of a .pdf attachment or by other means of electronic transmission showing such signature. Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
Securities bearing the signatures of individuals who were at any time the proper Officers of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series, executed by the Issuer, to the Trustee for authentication, together with the Board Resolution and Officer’s Certificate or supplemental indenture with respect to such Securities referred to in Section 3.1 and an Issuer Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Issuer Order and subject to the provisions hereof shall authenticate and deliver such Securities. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.1) shall be fully protected in relying upon, an Opinion of Counsel stating,
(a) that the form and terms of such Securities have been established in conformity with the provisions of this Indenture; and
(b) that all conditions precedent set forth in this Indenture to the authentication and delivery of such Securities have been complied with and that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; provided, however, that if all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel at the time of issuance of each Security, but such Opinion of Counsel, with appropriate modifications, may instead be delivered at or prior to the time of the first issuance of Securities of such series.
The Trustee shall not be required to authenticate such Securities if the issue of such 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 that is not reasonably acceptable to the Trustee or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken.
If the Issuer shall establish pursuant to Section 3.1 that Securities of a series may be issued in whole or in part in global form, then the Issuer shall execute and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such series, authenticate and deliver one or more Securities in global form that (i) shall represent and shall be denominated in an authorized aggregate amount equal to the aggregate principal amount of the Outstanding Securities of such series and tenor to be represented by one or more Securities in global form, (ii)
14
shall be registered, in the name of the Depositary for such Security or Securities in global form or the nominee of such Depositary, (iii) shall be delivered to such Depositary or pursuant to such Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Unless and until it is exchanged in whole or in part for Securities in definitive form, this Security may not be transferred except as a whole 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. Unless this certificate is presented by an authorized representative of The Depository Trust Company (55 Water Street, New York, New York) to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of CEDE & CO. or such other name as may be requested by an authorized representative of The Depository Trust Company and any payment is made to CEDE & CO. or such other entity as may be requested by an authorized representative of The Depository Trust Company, any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful in as much as the registered owner hereof, CEDE & CO., has an interest herein.” Each Depositary designated pursuant to Section 3.1 for a Security in global form must, at the time of its designation and at all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and any other applicable statute or regulation. Neither the Trustee nor any Agent shall have the responsibility for any actions taken or not taken by the Depositary or the applicable procedures of the Depositary.
Each Security shall be dated the date of its authentication.
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 the form provided for in Section 2.2 or 6.14 executed by or on behalf of the Trustee by the manual signature of one of its authorized signatories, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Security to the Trustee for cancellation as provided in Section 3.9 for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Issuer may execute and deliver to the Trustee, and upon written order the Trustee shall authenticate and deliver, in the manner provided in Section 3.3, temporary Securities of such series that are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form without coupons and with such appropriate insertions, omissions, substitutions and other variations as the officers of the Issuer executing such Securities may determine, as evidenced by their execution of such Securities. In the case of Securities of any series, such temporary Securities may be in global form, representing all of the Outstanding Securities of such series and tenor.
Except in the case of temporary Securities in global form, which shall be exchanged in accordance with the provisions thereof, if temporary Securities of any series are issued, the Issuer will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities, the temporary Securities of such series shall be exchangeable upon request for definitive Securities of such series containing identical terms and provisions upon surrender of the temporary Securities of such series at an office or agency of the Issuer maintained for such purpose pursuant to Section 10.2, 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 authorized denominations of the same series containing identical terms and provisions. Unless otherwise specified as contemplated by Section 3.1 with respect to a temporary Security in global form, 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.
15
Section 3.5 Registration, Transfer and Exchange.
With respect to the Securities of each series, if any, the Issuer shall cause to be kept, at an office or agency of the Issuer maintained pursuant to Section 10.2, a register (herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of the Securities of each series and of transfers of the Securities of each series. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers and exchanges of Securities as herein provided; provided, that the Issuer may, from time to time, designate (or change any designation of) any other Person or Persons to act as Security Registrar or co-Security Registrars with respect to the Securities of one or more series, with notice to the Trustee and to the Holders. At all reasonable times the Security Register shall be open for inspection by the Issuer. In the event that the Trustee shall not be the Security Registrar, it shall have the right to examine the Security Register at all reasonable times.
Upon surrender for registration of transfer of any Security of any series at any office or agency of the Issuer maintained for that series pursuant to Section 10.2, the Issuer shall execute, and the Trustee, at the direction of the Issuer, shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series of an authorized denomination, of a like aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions.
Notwithstanding any other provision of this Section, unless and until it is exchanged in whole or in part for the individual Securities represented thereby, in definitive form, a Security in global form 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.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series containing identical terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any such office or agency of the Issuer maintained for that series pursuant to Section 10.2. Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee, at the direction of the Issuer, shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive.
If at any time the Depositary for the Securities of a series notifies 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 3.3, the Issuer, by Issuer Order, shall appoint a successor Depositary with respect to the Securities of such series. If a successor Depositary for the Securities of such series is not appointed by the Issuer within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the Issuer’s election pursuant to Section 3.1(c) shall no longer be effective with respect to the Securities of such series and the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of definitive Securities of such series, will authenticate and deliver, Securities of such series in definitive form in an aggregate principal amount and of like terms and tenor equal to the principal amount of the Security or Securities in global form representing such series in exchange for such Security or Securities in global form.
The Issuer may at any time and in its sole discretion determine that individual Securities of any series issued in global form shall no longer be represented by such Security or Securities in global form. In such event the Issuer will execute, and the Trustee, upon receipt of an Issuer Order for the authentication and delivery of individual definitive Securities of such series and of the same terms and tenor, will authenticate and deliver individual Securities of such series in definitive form in authorized denominations and in an aggregate principal amount equal to the principal amount of the Security or Securities in global form representing such series in exchange for such Security or Securities in global form.
16
If specified by the Issuer pursuant to Section 3.1 with respect to a series of Securities, the Depositary for such series of Securities may surrender a Security in global form for such series of Securities in exchange in whole or in part for individual Securities of such series in definitive form and of like terms and tenor on such terms as are acceptable to the Issuer, the Trustee and such Depositary. Thereupon, the Issuer shall execute, and the Trustee upon receipt of an Issuer Order for the authentication and delivery of individual definitive Securities of such series, shall authenticate and deliver, without service charge:
(a) to the Depositary or to each Person specified by such Depositary a new individual Security or Securities of the same series and of the same tenor, of authorized denominations, in aggregate principal amount equal to and in exchange for such Person’s beneficial interest in the Security in global form; and
(b) to such Depositary a new Security in global form in a denomination equal to the difference, if any, between the principal amount of the surrendered Security in global form and the aggregate principal amount of the individual Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the Issuer will execute and the Trustee pursuant to an Issuer Order will authenticate and deliver individual Securities in definitive registered form in authorized denominations.
Upon the exchange of a Security in global form for Securities in definitive form, at the direction of the Issuer, such Security in global form shall be cancelled by the Trustee. Securities issued in exchange for a Security in global form pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Security in global form, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee in writing. The Trustee shall deliver such Securities to the persons in whose names such Securities are so registered or to the Depositary.
Whenever any Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee, at the direction of the Issuer, shall authenticate and deliver, the Securities that the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the Issuer or the Security Registrar for such series of Security presented) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and such Security Registrar duly executed by the Holder or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 3.4, 9.5 or 11.7 not involving any transfer.
The Issuer shall not be required (i) to issue, register the transfer of or exchange any Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of that series under Section 11.3 and ending at the close of business on the day of such selection, or (ii) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except in the case of any Security to be redeemed in part, the portion thereof not to be redeemed.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Issuer shall execute and the Trustee, at the direction of the Issuer, shall authenticate and deliver in exchange therefor a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Issuer and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security, and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Issuer or the Trustee that such
17
Security has been acquired by a bona fide purchaser, the Issuer shall execute and upon its request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such destroyed, lost or stolen Security, a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding.
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 such Security.
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 relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security 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 all other Securities of that series duly issued hereunder.
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 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall, if so provided in such Security, be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered as of the close of business on the Regular Record Date for such interest.
Any interest on any Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for such Security (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Issuer, at its election in each case, as provided in clause (a) or (b) below:
(a) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities affected (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, 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 days and not less than 10 days prior to the date of the proposed payment and not less than 10 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 delivered electronically or mailed, first class postage prepaid, to each Holder of such Securities at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been delivered electronically or 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 (b).
(b) The Issuer may make payment of any Defaulted Interest 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 payment shall be deemed practicable by the Trustee.
18
Interest on Securities of any series that bear interest may be paid by mailing a check to the address of the person entitled thereto as such address shall appear in the Security Register or by wire transfer or other electronic means to an account within the United States as specified by the Holder.
Subject to the foregoing provisions of this Section and Section 3.5, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the Person in whose name such 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 Sections 3.5 and 3.7) interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Issuer, the Guarantor, the Trustee nor any agent of the Issuer or the Trustee shall be affected by notice to the contrary.
None of the Issuer, the Guarantor, the Trustee, any Authenticating Agent, any Paying Agent, the Security Registrar or any co-Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests and each of them may act or refrain from acting without liability on any information relating to such records provided by the Depositary.
Section 3.9 Cancellation.
All Securities surrendered for payment, redemption, repayment, registration of transfer or exchange or for credit against any sinking fund payment, if surrendered to any Person other than the Trustee, shall be delivered to the Trustee, and any such Securities and Securities surrendered directly to the Trustee for any such purpose shall be promptly cancelled by it. The Issuer and the Guarantor may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer or the Guarantor may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly cancelled by the Trustee at the direction of the Issuer. No securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be cancelled by it in its customary manner and it shall dispose of canceled Securities in accordance with its procedures for the disposition of canceled securities in effect as of the date of such disposition (subject to the record retention requirements of the Exchange Act).
Section 3.10 Computation of Interest; Calculations.
Except as otherwise contemplated by Section 3.1 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.
The Issuer shall be responsible for making calculations called for under the Securities, including but not limited to determination of Redemption Price, premium, if any, and any other amounts payable on the Securities. The Issuer will make the calculations in good faith and, absent manifest error, its calculations will be final and binding on the Holders. The Issuer will provide a schedule of its calculations to the Trustee when requested by the Trustee, and the Trustee is entitled to rely conclusively on the accuracy of the Issuer’s calculations without independent verification. The Trustee shall forward the Issuer’s calculations to any Holder upon the written request of such Holder.
Section 3.11 CUSIP Numbers.
The Issuer in issuing the Securities may use “CUSIP” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” numbers in notices as a convenience to Holders; 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
19
contained in any notice and that reliance may be placed only on the other identification numbers printed on the Securities, and any such notice 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” numbers.
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.
Upon the direction of the Issuer by an Issuer Order, this Indenture shall cease to be of further effect with respect to any series of Securities and the related Guarantee (except as to any surviving rights of registration of transfer or exchange of such series of Securities herein expressly provided for, rights, obligations, duties and immunities of the Trustee set forth in the last paragraph of this Section), and the Trustee, pursuant to an Issuer Order and at the expense of the Issuer, shall execute proper instructions acknowledging satisfaction and discharge of this Indenture with respect to such series of Securities, when:
(a) either:
| (i) | all Securities of such series (and the related Guarantee) theretofore authenticated and delivered (other than (A) Securities of such series that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 3.6, and (B) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Issuer or the Guarantor and thereafter repaid to the Issuer or the Guarantor or discharged from such trust, as provided in Section 10.3) have been delivered to the Trustee for cancellation; or |
| (ii) | all such Securities of such series not theretofore delivered to the Trustee for cancellation: |
| (1) | have become due and payable by reason of the making of a notice of redemption or otherwise, or |
| (2) | will become due and payable at their Stated Maturity within one year, or |
| (3) | if redeemable at the option of the Issuer, 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 or the Guarantor, in the case of (1), (2) or (3) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of Holders an amount of money in such currency or currencies in which such Securities are specified as payable at Maturity sufficient to pay and discharge, or U.S. Government Obligations maturing as to principal and paying interest in such amounts and at such times as will insure the availability of cash sufficient to pay and discharge, the entire indebtedness on such Securities (and the related Guarantee) not theretofore delivered to the Trustee for cancellation, 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 or Redemption Date, as the case may be;
(b) the Issuer or the Guarantor have paid or caused to be paid all other sums payable hereunder by the Issuer or the Guarantor; 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 as to such series of Securities (and the related Guarantee) have been complied with.
20
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Issuer to the Holders under Section 10.1 (or the obligations of the Guarantor or other obligor with respect to the payment of principal, premium, if any, and interest, as set forth in any supplemental indenture) and to the Trustee under Section 6.7 and, if money shall have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section, the obligations of the Trustee under Section 4.2 and the last paragraph of Section 10.3 shall survive such satisfaction and discharge.
Section 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 10.3, all cash or U.S. Government Obligations deposited with the Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the provisions of the Securities, and this Indenture, to the payment, either directly or through any Paying Agent (including the Issuer acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) for whose payment such cash or U.S. Government Obligations have been deposited with the Trustee; but such cash or U.S. Government Obligations need not be segregated from other funds except to the extent required by law.
ARTICLE 5
REMEDIES
Section 5.1 Events of Default.
“Event of Default,” wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest on any of the Securities of such series as and when such interest becomes due and payable, and continuance of such default for a period of 30 days; or
(b) default in the payment of all or any part of the principal of (and premium, if any, on) any of the Securities of such series as and when the same becomes due and payable at Maturity, or default in the deposit of any sinking fund payment, when and as due and payable by the terms of any of the Securities of such series; or
(c) default in the performance, or breach, of any covenant, warranty or agreement in respect of the Securities of such series in this Indenture or any supplemental indenture (other than a covenant, warranty or agreement a default in whose performance or whose breach is elsewhere in this Section specifically dealt with), and continuance of such default or breach for a period of 60 consecutive days after there has been given, by registered or certified mail, return receipt requested, or by overnight courier guaranteeing next day delivery and providing written confirmation thereof, to the Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of such series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default” hereunder; or
(d) a court having jurisdiction in the premises shall enter a decree or order for relief in respect of the Issuer in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its property, 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 90 consecutive days; or
(e) the Issuer shall commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency, reorganization or other similar law now or hereafter in effect or seeking the appointment of a receiver, liquidator, custodian, trustee, sequestrator or other similar official of it or any substantial part of its property, or shall consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or shall make a general assignment for the benefit of creditors, or shall admit in writing of its inability to pay its debts as they become due, or shall take any corporate action to authorize any of the foregoing; or
21
(f) any other Event of Default provided with respect to Securities of that series.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to the Securities of any series at the time Outstanding (other than an Event of Default specified in Section 5.1(d) or (e)) occurs and is continuing, then, and in each and every case, unless the principal of all of the Securities of such series shall have already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series, by notice in writing to the Issuer (and to the Trustee if given by such Holders), may declare the entire principal of all Securities of such series, or such lesser amount as may be provided for in the Securities of such series, and the interest accrued thereon to be due and payable immediately, and upon any such declaration the same shall become due and payable immediately.
If an Event of Default specified in Section 5.1(d) or (e) occurs and is continuing, then, and in each and every such case, unless the principal of all the Securities shall have already become due and payable, the entire principal of all the Outstanding Securities, or such lesser amount as may be provided for in the Securities of any series, and interest accrued thereon shall automatically become due and payable immediately without any declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration (other than resulting from an Event of Default specified in Section 5.1(d) or (e)) with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Issuer and the Trustee, may waive all defaults with respect to such series and rescind and annul such declaration and its consequences if:
(a) the Issuer or the Guarantor have paid or deposited with the Trustee a sum sufficient to pay:
| (i) | all overdue installments of interest on all Securities of that series, |
| (ii) | the principal of (and premium, if any, on) any Securities of that series that have become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates borne by or provided for in such Securities, |
| (iii) | to the extent that payment of such interest is lawful, interest upon overdue installments of interest at the rate or rates borne by or provided for in such Securities, and |
| (iv) | all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and |
(b) all Events of Default with respect to the Securities of that series, other than the non-payment of the principal of the Securities of that series that has become due solely by such declaration of acceleration, have been cured or waived as provided in Section 5.11.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 5.3 Collection Suit by Trustee.
If a Default in payment of principal or interest specified in Section 5.1(a) or (b) occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust against the Issuer or any other obligor on the Securities for the whole amount of principal and accrued interest and fees remaining unpaid, together with interest on overdue principal and, to the extent that payment of such interest is lawful, interest on overdue installments of interest, in each case at the rate per annum borne by the Securities and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
22
Section 5.4 Trustee May File Proofs of Claim.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and the Holders allowed in any judicial proceedings relating to the Issuer, its creditors or its property and shall be entitled and empowered to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same, and any custodian in any such judicial proceedings is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due the Trustee under Section 6.7. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder, or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding. The Trustee shall be entitled to participate as a member of any official committee of creditors in the matters as it deems necessary or advisable.
Section 5.5 Other Remedies.
If a Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of principal of, or interest on, the Securities or to enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Holder in exercising any right or remedy accruing upon a Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Default. No remedy is exclusive of any other remedy. All available remedies are cumulative to the extent permitted by law.
Section 5.6 Priorities.
If the Trustee collects any money or property pursuant to this Article 5, it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 6.7;
Second: to Holders for interest accrued on the Securities, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for interest;
Third: to Holders for principal amounts due and unpaid on the Securities, ratably, without preference or priority of any kind, according to the amounts due and payable on the Securities for principal; and
Fourth: to the Issuer or, if applicable, the Guarantor, as their respective interests may appear.
The Trustee may fix a record date and payment date for any payment to Holders pursuant to this Section 5.6.
Section 5.7 Limitation on Suits.
No Holder shall have any right to institute any proceeding with respect to this Indenture or for any remedy hereunder, unless:
(a) the Holder gives the Trustee written notice of a continuing Event of Default;
23
(b) the Holders of at least 25% in aggregate principal amount of outstanding Securities make a written request to the Trustee to pursue the remedy;
(c) such Holder or Holders offer the Trustee security or indemnity satisfactory to the Trustee against any losses, costs, liability or expense;
(d) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and
(e) during such 60-day period, the Holders of a majority in aggregate principal amount of the outstanding Securities do not give the Trustee a direction that is inconsistent with the request.
A Holder may not use this Indenture to prejudice the rights of another Holder or to obtain a preference or priority over such other Holder.
Section 5.8 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of principal of and premium, if any, and interest on, a Security, on or after the respective due dates therefor, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of the Holder.
Section 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Issuer, the Guarantor, the Trustee and the Holders of Securities shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10 Control by Majority.
The Holders of at least a majority in aggregate principal amount of the Outstanding Securities may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. Subject to Section 6.1, however, the Trustee may refuse to follow any direction that conflicts with any law or this Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Securities not joining in the giving of such direction received from the Holders of Securities; provided, however, that the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with any such direction.
In the event the Trustee takes any action or follows any direction pursuant to this Indenture, the Trustee shall be entitled to indemnification reasonably satisfactory to it from each of the Parent and the Issuer against any loss or expense caused by taking such action or following such direction.
Section 5.11 Waiver of Past Defaults.
Subject to Sections 5.8 and 9.2, the Holders of a majority in principal amount of the Outstanding Securities (which may include consents obtained in connection with a tender offer or exchange offer of Securities) by notice to the Trustee may waive an existing Default and its consequences, except a Default in the payment of principal of, or interest on, any Security as specified in Section 5.1(a) or (b). The Issuer shall deliver to the Trustee an Officer’s Certificate stating that the requisite percentage of Holders have consented to such waiver and attaching copies of such consents. When a Default is waived, it is cured and ceases.
24
Section 5.12 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 5.12 does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 5.8, or a suit by a Holder or Holders of more than 10% in principal amount of the outstanding Securities.
ARTICLE 6
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default known to the Trustee,
| (i) | the Trustee undertakes to perform such duties, and only such duties, as are specifically and expressly set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and |
| (ii) | in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions that by any provisions hereof 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 stated therein). |
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and 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 his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
| (i) | this subsection shall not be construed to limit the effect of subsection (a) of this Section; |
| (ii) | the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and |
| (iii) | the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of any series, relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such series. |
(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.
25
(e) No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers.
Section 6.2 Notice of Defaults.
If a Default occurs and is continuing and is actually known to a Responsible Officer of the Trustee pursuant to Section 6.3(l), the Trustee shall mail to each Holder notice of the uncured Default within 60 days after such Default occurs. Except in the case of a Default in payment of principal of (and premium if applicable), or interest on, any Security, the Trustee may withhold the notice if and so long as the Board of Directors, the executive committee, or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determines that withholding the notice is in the interest of the Holders.
Section 6.3 Certain Rights of Trustee.
Except as otherwise provided in Section 6.1:
(a) 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, direction, consent, order, bond, debenture, note, or other paper or document (whether in its original or facsimile form) reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer Order (other than delivery of any Security to the Trustee for authentication and delivery pursuant to Section 3.3, 3.5 or 3.6, which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) 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 (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer’s Certificate;
(d) the Trustee may consult with counsel of its selection and the written or verbal advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, losses, expenses and liabilities that might be incurred by it in compliance with such request or direction;
(f) 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 or other paper or document, or inquire as to the performance by the Issuer of any of their covenants in this Indenture, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty, and the Trustee shall not be answerable for other than its negligence or willful misconduct;
26
(i) the rights, privileges, protections, immunities and benefits given to the Trustee, including, but not limited to, its right to be compensated, reimbursed and indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, whether as agent or otherwise, and to each agent, custodian and other person employed to act hereunder;
(j) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
(k) in no event shall the Trustee be responsible or liable for special, indirect, punitive, 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;
(l) the Trustee shall not be required to take notice or be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice from the Issuer or by the Holders of at least 25% of the aggregate principal amount of the Outstanding Securities of any series then outstanding of any event that is in fact such a Default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(m) 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;
(n) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties hereunder;
(o) under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Securities; and
(p) the Trustee shall have no obligation to pursue any action pursuant to this Indenture that is not in accordance with applicable law.
Section 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, shall be taken as the statements of the Issuer, and the Trustee or any Authenticating Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Issuer of Securities or the proceeds thereof.
Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Issuer or the Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.8 and 6.13, may otherwise deal with the Issuer and the Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.6 Money Held in Trust.
Money held by the Trustee or any Paying Agent in trust hereunder need not be segregated from other funds except to the extent required by law. Neither the Trustee nor any Paying Agent shall be under any liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Issuer or the Guarantor, as the case may be.
27
Section 6.7 Compensation and Reimbursement.
The Issuer and the Guarantor agree:
(a) to pay to the Trustee from time to time compensation as shall be agreed in writing between the Issuer and the Trustee for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the 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; and
(c) to fully indemnify the Trustee and its directors, officers, employees, counsels and agents for, and to hold them harmless against, any loss, cost, liability, claim, damage, fee or expense incurred without negligence or willful misconduct, as adjudicated by a final non-appealable decision of a court of competent jurisdiction, on their part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses (including reasonable attorneys’ fees and expenses and court costs) incurred in connection with defending itself against any action, claim or suit brought to enforce the Trustee’s right to indemnification and the Trustee defending themselves against any claim (whether asserted by the Company, or any Holder or any other Person) or liability in connection with the exercise or performance of any of their powers or duties hereunder.
As security for the performance of the obligations of the Issuer under this Section, the Trustee shall have a lien prior to the Securities of any series upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any) or interest on the Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.1(d) or Section 5.1(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this Indenture and the resignation or removal of the Trustee.
“Trustee” for the purposes of this Section 6.7 shall include any predecessor Trustee and the Trustee in each of its capacities hereunder and each agent, custodian and other person employed to act hereunder; provided, however, that the negligence or willful misconduct of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
Section 6.8 Disqualifications; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning 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.
Section 6.9 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder, which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 and its Corporate Trust Office in the United States. If such Person 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 Section, 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 the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
28
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee under Section 6.11.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Issuer. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition at the expense of the Issuer any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(c) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and to the Issuer.
(d) If at any time:
| (i) | the Trustee shall fail to comply with Section 6.8 after written request therefor by the Issuer or by any Holder who has been a bona fide Holder for at least six months, or |
| (ii) | the Trustee shall cease to be eligible under Section 6.9 and shall fail to resign after written request therefor by the Issuer or by any such Holder, or |
| (iii) | 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 a Board Resolution may remove the Trustee with respect to all Securities, or (ii) subject to Section 5.12, any Holder who has been a bona fide Holder for at least six months 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 of such series and the appointment of a successor Trustee or Trustees. Such court may thereupon, after such notice, if any, as it may deem proper, remove the Trustee and appoint a successor Trustee with respect to such Securities.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Issuer shall promptly appoint a successor Trustee or Trustees 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 particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall have been appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Issuer. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Issuer or the Holders of Securities and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series. Such court may thereupon, after such notice, if any, as it may deem proper, remove the Trustee and appoint a successor Trustee with respect to such Securities.
29
(f) The Issuer shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in a manner provided in Article 1. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuer and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Issuer or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuer, the Guarantor, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and that (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any notice given to, or received by, or any act or failure to act on the part of any other Trustee hereunder, and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor Trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture other than as hereinafter expressly set forth, and each such successor Trustee without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Issuer, the Guarantor or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Issuer and the Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, by sale, transfer or otherwise, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified
30
and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
Section 6.13 Preferential Collection of Claims Against the Issuer and the Guarantor.
If and when the Trustee shall be or become a creditor of the Issuer or the Guarantor (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Issuer or the Guarantor (or any such other obligor).
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities that shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue or exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.6, and 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. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Issuer and shall at all times be a corporation organized and doing business under the laws of the United States of America, 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 Authenticating Agent 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 Section, the combined capital and surplus of such Authenticating Agent 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 Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
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, by sale or otherwise, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, 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 Issuer. 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 Issuer. 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, the Trustee may appoint a successor Authenticating Agent that shall be acceptable to the Issuer and shall deliver electronically or mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities, if any, of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. 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.
The Issuer agrees to pay each Authenticating Agent from time to time reasonable compensation for its services under this Section.
The provisions of Sections 3.8, 6.4 and 6.5 shall be applicable to each Authenticating Agent.
31
If an appointment with respect to one or more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within mentioned Indenture.
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
| By: |
| |
| As Authenticating Agent | ||
| By: |
| |
| Authorized Signatory | ||
| Dated: |
| |
If all of the Securities of any series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Issuer wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested in writing (which writing need not comply with Section 1.3) by the Issuer, shall appoint in accordance with this Section 6.14 an Authenticating Agent having an office in a Place of Payment designated by the Issuer with respect to such series of Securities.
ARTICLE 7
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Holder Lists.
The Trustee in respect of Securities of a series will preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of all Holders of Securities of that series and shall otherwise comply with Section 312(a) of the Trust Indenture Act. If the Trustee is not the Security Registrar of such Securities, the Issuer will furnish to the Trustee at least seven Business Days before each Interest Payment Date, and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of such Securities and the Issuer shall otherwise comply with Section 312(a) of the Trust Indenture Act.
Section 7.2 Communications to Holders.
(a) The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities shall be as provided by the Trust Indenture Act.
(b) Every Holder, by receiving and holding the same, agrees with the Issuer, the Guarantor and the Trustee that neither the Issuer, the Guarantor nor the Trustee nor any Paying Agent nor any Security Registrar shall be held accountable by reason of the disclosure of any such information as to the names and addresses of Holders made pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
(a) 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 within 60 days after May 1 of each year commencing with the May 1 following the issue date, and at such other times as may be required by the Trust Indenture Act or as set forth in a supplemental indenture.
32
(b) A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which the Securities are listed, with the Commission and with the Issuer. The Issuer will promptly notify the Trustee in writing when the Securities are listed on any stock exchange and of any delisting thereof.
Section 7.4 Reports by the Issuer and the Guarantor.
The Issuer and the Guarantor shall file with the Trustee and the Commission, and transmit to Holders, information, documents and other reports and such summaries thereof as may be required pursuant to the Trust Indenture Act at the time and in the manner provided pursuant to the Trust Indenture Act; provided that such information, documents and reports required to be filed with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act shall be filed with the Trustee within 15 days after the same is so required to be filed with the Commission.
Delivery of such information, documents and reports to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuer’s or the Guarantor’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates or statements delivered pursuant to Section 10.4(a)). All required information, documents and other reports referred to in this Section 7.4 shall be deemed filed with the Trustee and transmitted to the Holders at the time such information, documents or other reports are publicly filed with the Commission via the Commission’s EDGAR filing system (or any successor system); provided, however, that the Trustee shall have no responsibility whatsoever to determine whether or not such filing has taken place.
ARTICLE 8
GUARANTEE
Section 8.1 Guarantee.
Subject to this Article 8, the Guarantor hereby unconditionally guarantees on a senior unsecured basis to each Holder authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities or the obligations of the Issuer hereunder or thereunder, that: (a) the principal of and interest on the Securities shall 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 the Securities, if any, if lawful, and all other obligations of the Issuer to the Holders or the Trustee hereunder or thereunder shall be promptly paid in full or performed, all in accordance with the terms hereof and thereof; and (b) in case of any extension of time of payment or renewal of any Securities or any of such other obligations, that same shall 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 shall be obligated to pay the same immediately. The Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
The Guarantor hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the Securities or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder 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 the Guarantor. Subject to Section 5.7 hereof, the Guarantor hereby waives, to the extent permitted by applicable law, diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever and covenant that this Guarantee shall not be discharged except by complete performance of the obligations contained in the Securities and this Indenture.
33
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, shall be reinstated in full force and effect.
The Guarantor agrees that it shall 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, (x) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article 5 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby and (y) in the event of any declaration of acceleration of such obligations as provided in Article 5 hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Guarantee.
Section 8.2 Limitation on Guarantor Liability.
The Guarantor, and by its acceptance of any series of Securities, 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 the 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 such 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 the Guarantee not constituting a fraudulent transfer or conveyance.
ARTICLE 9
SUPPLEMENTAL INDENTURE
Section 9.1 Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities, the Issuer and the Guarantor, in each case, when authorized by a Board Resolution, 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 of the following purposes:
(a) to evidence the succession of another Person to the Issuer or the Guarantor, as the case may be, and the assumption by any such successor of the covenants of the Issuer or the Guarantor herein and in the Securities contained, as the case may be; or
(b) to add to the covenants of the Issuer or the Guarantor for the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein conferred upon the Issuer or the Guarantor; or
(c) to change or eliminate any restrictions on the payment of principal (or premium, if any) on Securities or to permit or facilitate the issuance of Securities in uncertificated form, provided any such action shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or
(d) to add to, change or eliminate any provision of this Indenture; provided, that any such addition, change or elimination (i) shall become effective only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture that is entitled to the benefit of such provision or (ii) shall not apply to any Security Outstanding, in each case unless otherwise specified in the terms of the series of Securities as permitted by Section 3.1; or
(e) to establish the form or terms of Securities of any series as permitted by Sections 2.1 and 3.1; or
34
(f) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.11(b); or herein; or
(g) to cure any ambiguity, to correct or supplement any provision herein that may be defective or inconsistent with any other provision
(h) to make any other terms or provisions with respect to matters or questions arising under this Indenture that shall not adversely affect the interest of the Holders of Securities of any series in any material respect; or
(i) to add to, delete from or revise the conditions, limitations and restrictions on the authorized amount, terms or purposes of issue, authentication and delivery of Securities, as herein set forth; or
(j) to add any additional Events of Default (and if such Events of Default are to be applicable to less than all series of Securities stating that such Events of Default are expressly being included solely to be applicable to such series) or to delete or revise any Event of Default with respect to any series of Securities not yet Outstanding; or
(k) to conform the text of this Indenture, any Securities and the related Guarantee to any provision of the “Description of the Notes” Section or other relevant Section describing the terms of such securities of the applicable prospectus, prospectus supplement or other offering circular or memorandum to the extent that such provision in the “Description of the Notes” was intended to be a substantially verbatim recitation of a provision of this Indenture, such Securities or such Guarantee as set forth in an Officer’s Certificate delivered to the Trustee; or
(l) 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; provided, that such action shall not adversely affect the interest of the Holders of the Securities of any series in any material respect, as determined by the Issuer; or
(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 pursuant to Sections 4.1, 13.2 and 13.3; provided that any such action pursuant to this clause shall not adversely affect the interests of the Holders of Securities of any series in any respect; or
(n) comply with the requirements of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act; or
(o) to provide for the guarantee of, or to secure, all or any series of Securities and the terms thereof.
Section 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of said Holders delivered to the Issuer, the Guarantor and the Trustee, the Issuer and the Guarantor, in each case when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture, or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental Indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(a) change the Stated Maturity of the principal of, or any installment of interest on, any Security, or reduce the principal amount thereof or the rate of interest thereon, or any premium payable upon the redemption thereof, or reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 5.2, or change any Place of Payment where, or the coin or currency in which, any Security or any premium or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption, on or after the Redemption Date), or
35
(b) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such 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
(c) modify any of the provisions of this Section or Section 5.11, 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, or
(d) adversely affect the right to repayment, if any, of Securities of any series at the option of the Holders thereof.
A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been included solely for the benefit of one or more particular series of Securities, or that 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.
It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 9.3 Compliance with the Trust Indenture Act.
From the date on which this Indenture is qualified under the Trust Indenture Act, every amendment, waiver or supplement of this Indenture, the Securities or the Guarantee shall comply with the Trust Indenture Act as then in effect.
Section 9.4 Revocation and Effect of Consents.
Until an amendment, waiver or supplement becomes effective, a consent to it by a Holder is a continuing consent by the Holder and every subsequent Holder that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his or her Security or portion of his or her Security by notice to the Trustee or the Issuer received before the date on which the Trustee receives an Officer’s Certificate certifying that the Holders of the requisite principal amount of Securities have consented (and not theretofore revoked such consent) to the amendment, supplement or waiver.
The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to consent to any amendment, supplement or waiver, which record date shall be at least 30 days prior (or such shorter period of time as may be acceptable to the Trustee) to the first solicitation of such consent. If a record date is fixed, then notwithstanding the last sentence of the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those Persons, shall be entitled to revoke any consent previously given, whether or not such Persons continue to be Holders after such record date. The Issuer shall inform the Trustee in writing of the fixed record date if applicable.
After an amendment, supplement or waiver becomes effective, it shall bind every Holder, unless it makes a change that requires the consent of each Holder affected, in which case, the amendment, supplement or waiver shall bind only each Holder who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security; provided, however, that any such waiver shall not impair or affect the right of any Holder to receive payment of principal of, and interest on, a Security, on or after the respective due dates therefor, or to bring suit for the enforcement of any such payment on or after such respective dates without the consent of such Holder.
36
Section 9.5 Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the Issuer may require the Holder to deliver it to the Trustee. The Issuer shall provide the Trustee with an appropriate notation on the Security about the changed terms and cause the Trustee to return it to the Holder at the Issuer’s expense. Alternatively, if the Issuer or the Trustee so determines, the Issuer in exchange for the Security shall issue, and the Trustee shall authenticate, a new Security that reflects the changed terms. Failure to make the appropriate notation or issue a new Security shall not affect the validity and effect of such amendment, supplement or waiver.
Section 9.6 Trustee To Sign Amendments, Etc.
The Trustee shall execute any amendment, supplement or waiver authorized pursuant to this Article 9; provided, however, that the Trustee may, but shall not be obligated to, execute any such amendment, supplement or waiver which affects the Trustee’s own rights, duties or immunities under this Indenture. The Trustee shall receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officer’s Certificate each stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by this Indenture and constitutes legal, valid and binding obligation of the Issuer enforceable in accordance with its terms, subject to customary exceptions. Such Opinion of Counsel shall be at the expense of the Issuer.
ARTICLE 10
COVENANTS
Section 10.1 Payment of Securities.
The Issuer shall pay the principal of, premium, if any, and interest on the Securities in the manner provided in the Securities and this Indenture. An installment of principal of, or interest on, the Securities shall be considered paid on the date it is due if the Trustee or Paying Agent (other than the Issuer or an Affiliate thereof) holds by 12:00 p.m. New York City time on that date money designated for and sufficient to pay the installment. Except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officer’s Certificate or in any such indenture supplemental hereto, interest on the Securities will be computed on the basis of a 360-day year comprised of twelve 30-day months.
The Issuer shall pay interest on overdue principal (including post-petition interest in a proceeding under any Bankruptcy Law), and overdue interest, to the extent lawful, at the same rate per annum borne by the Securities.
Section 10.2 Maintenance of Office or Agency.
The Issuer shall maintain in the United States of America, the office or agency required under Section 3.5 (which may be an office of the Trustee or an affiliate of the Trustee or Security Registrar). The Issuer shall 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 address of the Corporate Trust Office.
The Issuer may also, from time to time, designate one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Issuer shall give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
The Issuer hereby initially designates Wells Fargo Bank, National Association, located at 600 South 4th Street, 7th Floor, Minneapolis, MN 55415, Attention: Bondholder Communications, as such office of the Issuer in accordance with Section 3.5.
37
Section 10.3 Money for Securities Payments To Be Held in Trust.
If the Issuer shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any), or interest on, any of the Securities of that series, segregate and hold in trust for the benefit of the Person entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal of (and premium, if any), or interest on, any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such amount as provided in the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of their action or failure so to act.
The Issuer will cause each Paying Agent for any series of Securities other than the Trustee 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, that such Paying Agent will:
(a) hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(b) give 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 principal (and premium, if any) or interest on the Securities of that series; and
(c) at any time during the continuance of any such Default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer or such Paying Agent, such sums to be held by the Trustee upon the same terms as those upon which such sums were held by the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Except as otherwise provided in the form of Securities of any particular series pursuant to the provisions of this Indenture, 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 on Issuer Request, or (if then held by the Issuer) shall be discharged from such trust, subject to applicable escheatment laws; and the Holder shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof, 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.
Section 10.4 Compliance Certificate; Notice of Default.
(a) The Parent shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Parent, commencing with December 31, 2021, an officer’s certificate signed by the principal executive officer, principal financial officer or principal accounting officer of the Parent stating that a review of the activities of the Parent and its Subsidiaries (including the Issuer) has been made under the supervision of the signing Officer with a view to determining whether the Parent and its Subsidiaries (including the Issuer) have kept, observed, performed and fulfilled their obligations under this Indenture and further stating, as to each such Officer signing such certificate, that, to the best of such Officer’s knowledge, the Parent and its Subsidiaries (including the Issuer) during such preceding fiscal year have kept, observed, performed and fulfilled each and every such covenant and no Default occurred during such year and at the date of such certificate there is no Default that has occurred and is continuing or, if such signers do know of such Default , the certificate shall specify such Default and what action, if any, the Parent is taking or proposes to take with respect thereto.
38
(b) The Parent shall deliver to the Trustee within 30 days after the Parent becomes aware (unless such Default has been cured before the end of the 30-day period) of the occurrence of any Default an Officer’s Certificate specifying the Default and what action, if any, the Parent is taking or proposes to take with respect thereto.
Section 10.5 Corporate Existence.
Except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officer’s Certificate or in any such indenture supplemental hereto establishing the terms of any Securities, the Parent and the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect their corporate, partnership or other existence, as applicable, and the related material rights (charter and statutory) and material franchises of the Parent and the Issuer; provided, however, that the Parent and the Issuer shall not be required to preserve any such right, franchise or corporate existence with respect to themselves if the Board of Directors of the Parent or any officer of the Parent shall determine that the preservation thereof is no longer necessary or desirable in the conduct of the business of the Parent or the Issuer, as applicable, and that the loss thereof could not reasonably be expected to have a material adverse effect on the ability of the Issuer to perform their obligations hereunder and provided, further, however, that the foregoing shall not prohibit a sale, transfer, conveyance, lease or disposal of any of the Parent’s assets in compliance with the terms of this Indenture.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1 Applicability of Article.
Securities of any series that are redeemable before their Stated Maturity shall be redeemable in accordance with the terms of such Securities and (except as otherwise specified as contemplated by Section 3.1 for Securities of any series) this Article.
Section 11.2 Notice to Trustee.
In case of any redemption at the election of the Issuer of the Securities of any series, the Issuer shall notify the Trustee in writing of the Redemption Date, the Redemption Price and the principal amount of Securities to be redeemed. The Issuer shall give notice of redemption to the Trustee at least 45 days but not more than 75 days before the Redemption Date (unless a shorter notice shall be agreed to by the Trustee in writing), together with such documentation and records as shall enable the Trustee to select the Securities to be redeemed.
Section 11.3 Selection of Securities To Be Redeemed.
If less than all the Securities of any series having the same terms are to be redeemed, the particular Securities to be redeemed shall be selected by the Trustee as follows:
(x) in compliance with the requirements of the principal national securities exchange, if any, on which the Securities are then listed; or
(y) on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate, but in any case in accordance with the applicable procedures of the Depositary for the Securities.
No Securities of a principal amount of $2,000 or less shall be redeemed in part.
39
Section 11.4 Notice of Redemption.
At least 15 days but not more than 60 days before a Redemption Date, the Issuer shall deliver electronically or mail a notice of redemption by first-class mail, postage prepaid, or as otherwise provided in accordance with the procedures of the Depository, to each Holder whose Securities are to be redeemed at its registered address, except that redemption notices may be delivered electronically or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of this Indenture pursuant to Article 4 and Article 13 hereof. At the Issuer’s request, the Trustee shall forward the notice of redemption in the Issuer’s name and at the Issuer’s expense. Each notice for redemption shall identify the Securities (including the CUSIP or ISIN number) to be redeemed and shall state:
| 1) | the Redemption Date; |
| 2) | the Redemption Price and the amount of accrued interest, if any, to be paid; |
| 3) | the name and address of the Paying Agent; |
| 4) | that Securities called for redemption shall be surrendered to the Paying Agent to collect the Redemption Price plus accrued interest, if any; |
| 5) | that, unless the Issuer defaults in making the redemption payment, interest on Securities called for redemption ceases to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Securities is to receive payment of the Redemption Price upon surrender to the Paying Agent of the Securities redeemed; |
| 6) | if any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the Redemption Date, and upon surrender and cancellation of such Security, a new Security or Securities in aggregate principal amount equal to the unredeemed portion thereof will be issued; |
| 7) | if fewer than all the Securities are to be redeemed, the identification of the particular Securities (or portion thereof) to be redeemed, as well as the aggregate principal amount of Securities to be redeemed and the aggregate principal amount of Securities to be outstanding after such partial redemption; and |
| 8) | the Section of the Securities or this Indenture, as applicable, pursuant to which the Securities are to be redeemed. |
The notice, if delivered electronically or mailed in a manner herein provided, shall be conclusively presumed to have been given, whether or not the Holder receives such notice. In any case, failure to give such notice by electronic delivery or mail or any defect in the notice to the Holder of any Security designated for redemption in whole or in part shall not affect the validity of the proceedings for the redemption of any other Security. Except as otherwise provided in this Article 11, notices of redemption may not be conditional.
At the Issuer’s request, the Trustee shall give the notice of redemption in the name of the Issuer and at its expense; provided that the Issuer shall have delivered to the Trustee, at least five Business Days before notice of redemption is required to be electronically delivered or mailed or caused to be electronically delivered or mailed to Holders pursuant to this Section 11.4 (unless a shorter notice shall be agreed to by the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding paragraph.
Section 11.5 Deposit of Redemption Price.
On or before 12:00 p.m. New York City time on the Redemption Date, the Issuer shall deposit with the Paying Agent an amount of money sufficient to pay the Redemption Price plus accrued and unpaid interest, if any,
40
of all Securities to be redeemed on that date. The Paying Agent shall promptly return to the Issuer any money deposited with the Paying Agent by the Issuer in excess of the amounts necessary to pay the Redemption Price of, and accrued and unpaid interest on, all Securities to be redeemed or purchased.
If the Issuer complies with the preceding paragraph, then, unless the Issuer defaults in the payment of such Redemption Price plus accrued interest, if any, interest on the Securities to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Securities are presented for payment.
Section 11.6 Effect of Notice of Redemption.
Once notice of redemption is electronically delivered or mailed in accordance with Section 11.4, Securities called for redemption become due and payable on the Redemption Date and at the Redemption Price plus accrued interest, if any. Upon surrender to the Trustee or Paying Agent, such Securities called for redemption shall be paid at the Redemption Price (which shall include accrued interest thereon to, but not including, the Redemption Date), but installments of interest, the maturity of which is on or prior to the Redemption Date, shall be payable to Holders of record at the close of business on the relevant Regular Record Dates. On and after the Redemption Date interest shall cease to accrue on Securities or portions thereof called for redemption unless the Issuer shall have not complied with its obligations pursuant to Section 11.5.
Section 11.7 Securities Redeemed in Part.
If any Security is to be redeemed in part only, the notice of redemption that relates to such Security shall state the portion of the principal amount thereof to be redeemed. A new Security or Securities in principal amount equal to the unredeemed portion of the original Security or Securities shall be issued in the name of the Holder thereof upon surrender and cancellation of the original Security or Securities. It is understood that, notwithstanding anything in this Indenture to the contrary, only an authentication order and not an Opinion of Counsel or Officer’s Certificate is required for the Trustee to authenticate such new Security.
ARTICLE 12
SINKING FUNDS
Section 12.1 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise specified as contemplated by Section 3.1 for Securities of such series or as otherwise permitted or required by any form of Security of such series issued pursuant to this Indenture.
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 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 sinking fund payment may be subject to reduction as provided in Section 12.2. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 12.2 Satisfaction of Sinking Fund Payments with Securities.
The Issuer may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of a series to be made pursuant to the terms of such Securities as provided for by the terms of such series, (1) deliver Outstanding Securities of such series (other than any of such Securities previously called for redemption) theretofore purchased or receive credit for Securities (not previously so credited) theretofore purchased by the Issuer and delivered to the Trustee for cancellation pursuant to Section 3.9, and (2) apply as a credit Securities of such series that have been redeemed either at the election of the Issuer pursuant to the terms of such series of Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities; provided, that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through
41
operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If, as a result of the delivery or credit of Securities of any series in lieu of cash payments pursuant to this Section 12.2, the principal amount of Securities of such series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon Issuer Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment; provided, however, that the Trustee or such Paying Agent shall at the request of the Issuer from time to time pay over and deliver to the Issuer any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Issuer to the Trustee of Securities of that series purchased by the Issuer having an unpaid principal amount equal to the cash payment requested to be released to the Issuer.
Section 12.3 Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for any series of Securities, the Issuer will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, that is to be satisfied by payment of cash and the portion thereof, if any, that is to be satisfied by delivering and crediting of Securities of that series pursuant to Section 12.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officer’s Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Issuer shall thereupon be obligated to pay the amount therein specified. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.3 and cause notice of the redemption thereof to be given in the name of and at the expense of the Issuer in the manner provided in Section 11.4. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.6 and 11.7.
ARTICLE 13
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 13.1 Issuer’s Option to Effect Legal Defeasance or Covenant Defeasance.
Except as otherwise specified as contemplated by Section 3.1 for Securities of such series or as otherwise permitted or required by any form of Security of such series issued pursuant to this Indenture, the provisions of this Article 13 shall apply to each series of Securities, and the Issuer may, at its option, effect legal defeasance of the Securities of or within a series under Section 13.2, or covenant defeasance of the Securities of or within a series under Section 13.3, in accordance with the terms of such Securities and in accordance with this Article 13.
Section 13.2 Legal Defeasance and Discharge.
Upon the Issuer’s exercise of the option provided in Section 13.1 applicable to this Section 13.2 with respect to any Securities or any series of Securities, as the case may be, the Issuer shall be deemed to have been discharged from their obligations with respect to such Securities as provided in this Section and to have cured all then-existing Events of Default on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called “Legal Defeasance”). For this purpose, such Legal Defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have satisfied all their other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 13.4 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the Issuer’s obligations with respect to such Securities under Sections 3.4, 3.5, 3.6, 10.2 and 10.3 and with respect to the Trustee, including but not limited to those under Section 6.7, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Issuer may exercise its option under this Section 13.2 notwithstanding the prior exercise of their option under Section 13.3.
42
Section 13.3 Covenant Defeasance.
Upon the Issuer’s exercise of the option provided in Section 13.1 applicable to this Section 13.3 with respect to any Securities of or within a series of Securities, as the case may be, (1) the Issuer and the Guarantor shall be released from their obligations under any covenants provided pursuant to Sections 3.1(p) or 9.1(b) for the benefit of the Holders of such Securities and (2) the occurrence of any event specified in Section 5.1(c) (with respect to any such covenants provided pursuant to Section 3.1(p) or 9.1(b) and 5.1(f)) shall be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.4 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Securities, the Issuer and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 5.1(f)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 13.4 Conditions to Legal Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.2 or Section 13.3 to any Securities or any series of Securities, as the case may be:
(1) The Issuer or the Guarantor shall irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, an amount of money,
U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountants, investments banks or financial advisors selected by the Issuer, to pay the principal of and interest on the Securities on the stated date for payment or on the redemption date of the Securities.
(2) In the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that, subject to customary assumptions and exclusions:
| (i) | the Issuer has received from, or there has been published by the Internal Revenue Service, a ruling, or |
| (ii) | since the date of this Indenture, there has been a change in the applicable U.S. Federal income tax law, |
in either case to the effect that, and based thereon this Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred.
(3) In the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred.
(4) No Default shall have occurred and be continuing on the date of such deposit (other than a Default resulting from the borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to other indebtedness and, in each case, the granting of liens on the deposited funds in connection therewith).
43
(5) The Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement or instrument (other than this Indenture) to which the Parent or any of its Subsidiaries is a party or by which the Parent or any of its Subsidiaries is bound (other than any such Default or default relating to any indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such indebtedness, and the granting of liens on the deposited funds in connection therewith).
(6) The Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by them with the intent of preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other of their creditors or others.
(7) The Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Legal Defeasance or Covenant Defeasance have been complied with.
Section 13.5 Application of Trust Money.
Subject to Section 13.6, the Trustee or Paying Agent shall hold in trust all money and U.S. Government Obligations deposited with it pursuant to this Article 13, and shall apply the deposited money and the money from U.S. Government Obligations in accordance with this Indenture to the payment of the principal of and the interest on the Securities. The Trustee shall be under no obligation to invest said money and U.S. Government Obligations, except as it may agree with the Issuer.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the money and U.S. Government Obligations deposited pursuant to Section 13.4 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Securities.
Anything in this Article 13 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the Issuer’s request any money or U.S. Government Obligations held by it as provided in Section 13.4 which, in the opinion of a nationally recognized firm of independent public accountants, investment bank of investment advisors expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 13.6 Repayment to the Issuer.
Subject to applicable escheatment laws, the Trustee and the Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal or interest that remains unclaimed for two years. After payment to the Issuer, Holders entitled to such money shall look to the Issuer for payment as general creditors unless an applicable law designates another Person, and all liability of the Trustee or such Paying Agent with respect to such trust money shall thereupon cease.
Section 13.7 Reinstatement.
If the Trustee or Paying Agent is unable to apply any money and U.S. Government Obligations in accordance with this Article 13 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s obligations under this Indenture, and the Securities and the Guarantee shall be revived and reinstated as though no deposit had occurred pursuant to this Article 13 until such time as the Trustee or Paying Agent is permitted to apply all such money and U.S. Government Obligations in accordance with this Article 13; provided that if the Issuer has made any payment of interest on, or principal of, any Securities because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money and U.S. Government Obligations held by the Trustee or Paying Agent.
*****
44
This instrument 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 exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or .pdf attachment shall be deemed to be their original signatures for all purposes. This Indenture (or to any document delivered in connection with this Indenture) shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code/UCC (collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
45
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
| SABRA HEALTH CARE LIMITED PARTNERSHIP, as Issuer, | ||
| By: | /s/ Richard K. Matros | |
| Name: Richard K. Matros Title: President and Chief Executive Officer | ||
| SABRA HEALTH CARE REIT, INC., as Parent and Guarantor | ||
| By: | /s/ Richard K. Matros | |
| Name: Richard K. Matros Title: President and Chief Executive Officer | ||
[Signature page to Indenture]
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee, | ||
| By: | /s/ Linda Lopez | |
| Name: Linda Lopez Title: Assistant Vice President | ||
[Signature page to Indenture]
Exhibit 4.2
EXECUTION VERSION
SABRA HEALTH CARE LIMITED PARTNERSHIP
as Issuer,
SABRA HEALTH CARE REIT, INC.,
as Parent and Guarantor,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of September 30, 2021
To the Indenture dated as of September 30, 2021
Establishing a series of Securities designated
3.200% Senior Notes due 2031
CROSS-REFERENCE TABLE
| Trust Indenture Act Section |
Indenture | |||
| 310(a)(1) | 6.9 | |||
| (a)(2) | 6.9 | |||
| (a)(3) | N.A. | |||
| (a)(4) | N.A. | |||
| (a)(5) | 6.9 | |||
| (b) | 6.8; 6.10 | |||
| (c) | N.A. | |||
| 311(a) | 6.13 | |||
| (b) | 6.13 | |||
| (c) | N.A. | |||
| 312(a) | 7.1; 7.2(a) | |||
| (b) | 7.2(b) | |||
| (c) | 7.2(c) | |||
| 313(a) | 7.3 | |||
| (b)(1) | 7.3 | |||
| (b)(2) | 7.3 | |||
| (c) | 7.3 | |||
| (d) | 7.3 | |||
| 314(a) | 10.4; 10.8 | |||
| (b) | N.A. | |||
| (c)(1) | 1.8; 1.9; 6.3 | |||
| (c)(2) | 1.8; 1.9; 6.3 | |||
| (c)(3) | N.A. | |||
| (d) | N.A. | |||
| (e) | 1.9 | |||
| (f) | N.A. | |||
| 315(a) | 6.1; 6.3 | |||
| (b) | 1.6; 6.2 | |||
| (c) | 6.1 | |||
| (d) | 5.10; 6.1 | |||
| (e) | 5.12 | |||
| 316(a)(last sentence) | 3.13 | |||
| (a)(1)(A) | 5.2; 5.10 | |||
| (a)(1)(B) | 5.11 | |||
| (a)(2) | 9.2 | |||
| (b) | 5.8 | |||
| (c) | 9.4 | |||
| 317(a)(1) | 5.3 | |||
| (a)(2) | 5.4 | |||
| (b) | 6.6 | |||
| 318(a) | 1.5 | |||
| (c) | 1.5 |
N.A. means Not Applicable
Note: This Cross-Reference Table shall not, for any purpose, be deemed to be a part of this Indenture.
TABLE OF CONTENTS
| Page | ||||
| ARTICLE 1 APPLICATION OF SUPPLEMENTAL INDENTURE AND CREATION OF THE NOTES |
1 | |||
| ARTICLE 2 DEFINITIONS AND OTHER TERMS OF GENERAL APPLICATION |
2 | |||
| ARTICLE 3 THE NOTES |
20 | |||
| ARTICLE 4 DISCHARGE OF INDENTURE |
23 | |||
| ARTICLE 5 DEFAULT AND REMEDIES |
24 | |||
| ARTICLE 6 THE TRUSTEE |
26 | |||
| ARTICLE 7 HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE |
26 | |||
| ARTICLE 8 GUARANTY |
27 | |||
| ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS |
27 | |||
| ARTICLE 10 COVENANTS |
29 | |||
| ARTICLE 11 REDEMPTION |
32 | |||
| ARTICLE 12 SINKING FUNDS |
33 | |||
| ARTICLE 13 DEFEASANCE |
33 | |||
| ARTICLE 14 SUCCESSOR CORPORATION |
36 | |||
| ARTICLE 15 ADDITIONAL TERMS OF THIS SUPPLEMENTAL INDENTURE |
37 | |||
| SIGNATURES |
S-1 | |||
| Exhibit A – Form of Note |
A-1 | |||
| Exhibit B – Form of Notation of Guaranty |
B-1 | |||
Note: This Table of Contents shall not, for any purpose, be deemed to be part of this Indenture.
i
FIRST SUPPLEMENTAL INDENTURE, dated as of September 30, 2021 (this “Supplemental Indenture”) among Sabra Health Care Limited Partnership, a Delaware limited partnership (the “Issuer”), Sabra Health Care REIT, Inc., a Maryland corporation (the “Parent”), as Guarantor, and Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, as Trustee (the “Trustee”) to the Indenture, dated as of September 30, 2021 (the “Base Indenture”), between the Issuer, the Parent, and the Trustee, as supplemented by this Supplemental Indenture (collectively, this “Indenture”).
RECITALS OF THE ISSUER
WHEREAS, the Base Indenture provides for the issuance from time to time of the Issuer’s unsecured debentures, notes or other evidences of indebtedness (herein and therein called the “Securities”), to be issued in one or more series as provided in the Base Indenture;
WHEREAS, Section 9.1(e) of the Base Indenture permits the Issuer and the Trustee to enter into a supplemental indenture to the Base Indenture to establish the form and terms of any series of Securities;
WHEREAS, Section 2.1 of the Base Indenture permits the form of Securities of any series to be established in a supplemental indenture to the Base Indenture;
WHEREAS, Section 3.1 of the Base Indenture permits certain terms of any series of Securities to be established pursuant to a supplemental indenture to the Base Indenture;
WHEREAS, pursuant to Sections 2.1 and 3.1 of the Base Indenture, the Issuer desires to provide for the establishment of a new series of Securities in an initial aggregate principal amount of $800,000,000 to be designated the “3.200% Senior Notes due 2031” (hereinafter called the “Notes”) under the Base Indenture, the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Supplemental Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Issuer and the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, for and in consideration of the foregoing and the purchase of the Notes established by this Supplemental Indenture by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all such Holders, as follows:
ARTICLE 1
APPLICATION OF SUPPLEMENTAL INDENTURE
AND CREATION OF THE NOTES
SECTION 1.01. Application of this Supplemental Indenture.
This Supplemental Indenture constitutes a part of the Base Indenture (the provisions of which, as modified by this Supplemental Indenture, shall apply to the Notes) in respect of the Notes. Notwithstanding any other provision of this Supplemental Indenture, all provisions of this Supplemental Indenture are expressly and solely for the benefit of the Holders of the Notes and any such provisions shall not be deemed to apply to any other series of Securities issued under this Indenture and shall not be deemed to amend, modify or supplement the Base Indenture for any purpose other than with respect to the Notes. All Initial Notes and Additional Notes, if any, will be treated as a single class for all purposes of this Indenture, including waivers, amendments, redemptions and offers to purchase.
1
SECTION 1.02. Effect of Supplemental Indenture.
(a) With respect to the Notes only, the Base Indenture shall be supplemented pursuant to Section 9.1(e) thereof to establish the terms of the Notes as set forth in this Supplemental Indenture.
(b) To the extent that the provisions of this Supplemental Indenture conflict with any provision of the Base Indenture, the provisions of this Supplemental Indenture shall govern and be controlling.
SECTION 1.03. The Trustee.
The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Issuer and the Guarantor.
ARTICLE 2
DEFINITIONS AND OTHER TERMS OF GENERAL APPLICATION
SECTION 2.01. Certain Terms Defined in the Indenture.
For all purposes of this Supplemental Indenture, the capitalized terms used herein (i) which are defined or amended in this Article 2 have the respective meanings assigned hereto in this Article 2 and (ii) which are defined in the Base Indenture (and which are not defined or amended in this Article 2) have the respective meanings assigned thereto in the Base Indenture.
SECTION 2.02. Definitions.
(a) The first paragraph of Section 1.1 of the Base Indenture shall be deleted in its entirety and shall not be applicable to the Notes.
(b) Section 1.1 of the Base Indenture shall be amended to add new definitions thereto in appropriate alphabetical sequence, as follows:
“2024 Notes” means the Issuer’s $300.0 million initial aggregate principal amount of 4.80% senior unsecured notes due 2024.
“Acquired Indebtedness” means Indebtedness of a Person existing at the time such Person becomes a Subsidiary or that is assumed in connection with an Asset Acquisition from such Person by a Subsidiary and not incurred by such Person in connection with, or in anticipation of, such Person becoming a Subsidiary or such Asset Acquisition; provided, however, that Indebtedness of such Person that is redeemed, defeased, retired or otherwise repaid at the time of or immediately upon consummation of the transactions by which such Person becomes a Subsidiary or such Asset Acquisition shall not be Acquired Indebtedness.
“Adjusted Consolidated Net Income” means, for any period, the aggregate net income (or loss) (before giving effect to cash dividends on preferred stock of the Parent or charges resulting from the redemption of preferred stock of the Parent) of the Parent and its Subsidiaries for such period determined on a consolidated basis in conformity with GAAP; provided, however, that the following items shall be excluded in computing Adjusted Consolidated Net Income, without duplication:
(1) the net income of any Person, other than the Parent or a Subsidiary, except to the extent of the amount of dividends or other distributions actually paid in cash (or to the extent converted into cash) or Temporary Cash Investments to the Parent or any of its Subsidiaries by such Person during such period;
(2) the net income of any Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Subsidiary of such net income is not at the time permitted by the operation of
2
the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Subsidiary, unless such restrictions with respect to the declaration and payment of dividends or distributions have been properly waived for such entire period; provided, however, that Adjusted Consolidated Net Income will be increased by the amount of dividends or other distributions or other payments made in cash (or to the extent converted into cash) or Temporary Cash Investments to the Parent or a Subsidiary thereof in respect of such period, to the extent not already included therein;
(3) the cumulative effect of non-cash charges resulting from a change in accounting principles; and
(4) any after-tax gains or losses attributable to Asset Sales.
“Adjusted Total Assets” means, for any Person, the sum of:
(1) Total Assets for such Person as of the end of the fiscal quarter preceding the Transaction Date; and
(2) any increase in Total Assets following the end of such quarter determined on a pro forma basis, including any pro forma increase in Total Assets resulting from the application of the proceeds of any additional Indebtedness.
“Asset Acquisition” means:
(1) an investment by the Parent or any of its Subsidiaries in any other Person pursuant to which such Person shall become a Subsidiary or shall be merged into or consolidated with the Parent or any of its Subsidiaries; provided, however, that such Person’s primary business is related, ancillary, incidental or complementary to the businesses of the Issuer or any of its Subsidiaries on the date of such investment; or
(2) an acquisition by the Parent or any of its Subsidiaries from any other Person of assets that constitute substantially all of a division or line of business, or one or more properties, of such Person; provided, however, that the assets and properties acquired are related, ancillary, incidental or complementary to the businesses of the Issuer or any of its Subsidiaries on the date of such acquisition.
“Asset Disposition” means the sale or other disposition by the Parent or any of its Subsidiaries, other than to the Parent, the Issuer or another Subsidiary, of:
(1) all or substantially all of the Capital Stock of any Subsidiary of the Parent; or
(2) all or substantially all of the assets that constitute a division or line of business, or one or more properties, of the Parent or any of its Subsidiaries.
“Asset Sale” means any sale, transfer or other disposition, including by way of merger, consolidation or Sale and Leaseback Transaction, in one transaction or a series of related transactions by the Parent or any of its Subsidiaries to any Person other than the Parent, the Issuer or any of their Subsidiaries of:
(1) all or any of the Capital Stock of any Subsidiary of the Parent;
(2) all or substantially all of the assets that constitute a division or line of business of the Parent or any of its Subsidiaries; or
(3) any property and assets of the Parent or any of its Subsidiaries outside the ordinary course of business of the Parent or such Subsidiary and, in each case, that is not governed by the provisions of Section 14.1;
3
provided, however, that “Asset Sale” shall not include:
(1) the lease or sublease of any Real Estate Asset;
(2) sales, leases, assignments, licenses, sublicenses, subleases or other dispositions of inventory, receivables and other current assets;
(3) the sale, conveyance, transfer, lease, disposition or other transfer of all or substantially all of the assets of the Parent as permitted under Section 14.1;
(4) the license or sublicense of intellectual property or other general intangibles;
(5) the issuance of Capital Stock by a Subsidiary in which the percentage interest (direct and indirect) in the Capital Stock of such Person owned by the Parent after giving effect to such issuance, is at least equal to the percentage interest prior to such issuance;
(6) any issuance of Capital Stock (other than Disqualified Stock) by the Issuer in order to acquire assets used or useful in a Permitted Business;
(7) the surrender or waiver of contract rights or settlement, release or surrender of a contract, tort or other litigation claim in the ordinary course of business;
(8) sales, transfers or other dispositions of assets with a fair market value not in excess of $50,000,000 in any transaction or series of related transactions;
(9) sales or other dispositions of cash or Temporary Cash Investments;
(10) the creation, granting, perfection or realization of any Lien permitted under this Indenture;
(11) the lease, assignment or sublease of property in the ordinary course of business so long as the same does not materially interfere with the business of the Parent and its Subsidiaries, taken as a whole; and
(12) sales, exchanges, transfers or other dispositions of damaged, worn-out or obsolete or otherwise unsuitable or unnecessary equipment or assets that, in the Parent’s reasonable judgment, are no longer used or useful in the business of the Parent or its Subsidiaries and any sale or disposition of property in connection with scheduled turnarounds, maintenance and equipment and facility updates.
“Attributable Debt” in respect of a Sale and Leaseback Transaction means, at the time of determination, the present value of the total obligations of the lessee for net rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction. For purposes hereof such present value shall be calculated using a discount rate equal to the rate of interest implicit in such Sale and Leaseback Transaction, determined by lessee in good faith on a basis consistent with comparable determinations of Capitalized Lease Obligations under GAAP; provided, however, that if such Sale and Leaseback Transaction results in a Capitalized Lease Obligation, the amount of Indebtedness represented thereby will be determined in accordance with the definition of “Capitalized Lease Obligations.”
“Audited Financial Statements” means the audited consolidated balance sheet of the Parent and its Subsidiaries for the fiscal year ended December 31, 2018, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the Parent and its Subsidiaries, including the notes thereto.
“Bank Agent” means Bank of America, N.A. in its capacity as administrative agent under the Credit Agreement, and any successor thereto in such capacity.
4
“Bankruptcy Law” means Title 11 of the United States Code, as amended, or any insolvency or other similar Federal or state law for the relief of debtors.
“Capitalized Lease” means, as applied to any Person, any lease of any property, whether real, personal or mixed, of which the discounted present value of the rental obligations of such Person as lessee, in conformity with GAAP, is required to be capitalized on the balance sheet of such Person. For clarity purposes, GAAP for purposes of this definition shall be deemed GAAP as reflected in and in effect on the date of the Audited Financial Statements, notwithstanding any change in GAAP relating thereto.
“Capitalized Lease Obligations” means, at the time any determination is to be made, the amount of the liability in respect of a Capitalized Lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP.
“Closing Date” means September 30, 2021.
“Common Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) that have no preference on liquidation or with respect to distributions over any other class of Capital Stock, including partnership interests, whether general or limited, of such Person’s equity, whether outstanding on the Closing Date or issued thereafter, including all series and classes of common stock.
“Common Units” means the common units of the Issuer, as defined in the Issuer’s limited partnership agreement.
“Consolidated EBITDA” means, for any period, Adjusted Consolidated Net Income for such period plus, to the extent such amount was deducted in calculating such Adjusted Consolidated Net Income (without duplication):
(1) Consolidated Interest Expense;
(2) provision for taxes based on income or profits or capital gains, including federal, state, provincial, franchise, excise and similar taxes and foreign withholding taxes;
(3) depreciation and amortization (including without limitation amortization or impairment write-offs of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period);
(4) all extraordinary or non-recurring gain or loss or expense as determined reasonably and in good faith by the Parent, together with any related provision for taxes;
(5) all non-cash items reducing Adjusted Consolidated Net Income (other than items that will require cash payments and for which an accrual or reserve is, or is required by GAAP to be, made), including (i) stock based compensation expense and (ii) any impairment charge or asset write-offs or write-downs related to intangible assets (including goodwill) and long-lived assets pursuant to GAAP, less all non-cash items increasing Adjusted Consolidated Net Income, all as determined on a consolidated basis for the Parent and its Subsidiaries in conformity with GAAP;
(6) proceeds from any business interruption insurance;
(7) non-controlling interests;
(8) income or expenses attributable to transactions involving derivative instruments that do not qualify for hedge accounting in accordance with GAAP; and
5
(9) gains or losses on disposition of depreciable real estate investments, property valuation losses and impairment charges.
Notwithstanding the preceding, the income taxes of, and the depreciation and amortization and other non-cash items of, a Subsidiary shall be added (or subtracted) to Adjusted Consolidated Net Income to compute Consolidated EBITDA only to the extent (and in the same proportion) that net income of such Subsidiary was included in calculating Adjusted Consolidated Net Income.
“Consolidated Interest Expense” means, for any period, the aggregate amount of interest expense, less the aggregate amount of interest income for such period, in respect of Indebtedness of the Parent and the Subsidiaries during such period, all as determined on a consolidated basis in conformity with GAAP including (without duplication):
(1) the interest portion of any deferred payment obligations;
(2) all commissions, discounts and other fees and expenses owed with respect to letters of credit and bankers’ acceptance financing;
(3) the net cash costs associated with Interest Rate Agreements and Indebtedness that is Guaranteed or secured by assets of the Parent or any of its Subsidiaries; and
(4) all but the principal component of rentals in respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid or to be accrued by the Parent and its Subsidiaries;
excluding, to the extent included in interest expense above, (A) the amount of such interest expense of any Subsidiary if the net income of such Subsidiary is excluded in the calculation of Adjusted Consolidated Net Income pursuant to clause (2) of the definition thereof (but only in the same proportion as the net income of such Subsidiary is excluded from the calculation of Adjusted Consolidated Net Income pursuant to clause (2) of the definition thereof), as determined on a consolidated basis in conformity with GAAP and (B) (i) accretion of accrual of discounted liabilities not constituting Indebtedness, (ii) any expense resulting from the discounting of any outstanding Indebtedness in connection with the application of purchase accounting in connection with any acquisition, (iii) amortization of deferred financing fees, debt issuance costs, commissions, fees and expenses and (iv) non-cash costs associated with the Interest Rate Agreements and Currency Agreements.
“Credit Agreement” means the Fifth Amended and Restated Credit Agreement effective September 9, 2019 by and among the Issuer and Sabra Canadian Holdings, LLC, together, the borrowers, the Parent and the other guarantors from time to time party thereto, the lenders party thereto in their capacities as lenders thereunder and Bank of America, N.A., as administrative agent, together with the related documents thereto (including any guarantee agreements and security documents).
“Currency Agreement” means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement.
“Disqualified Stock” means any class or series of Capital Stock of any Person that by its terms or otherwise is:
(1) required to be redeemed on or prior to the date that is 91 days after the Stated Maturity of the Notes;
(2) redeemable at the option of the holder of such class or series of Capital Stock, at any time on or prior to the date that is 91 days after the Stated Maturity of the Notes (other than into shares of Capital Stock that is not Disqualified Stock); or
6
(3) convertible into or exchangeable for Capital Stock referred to in clause (1) or (2) above or Indebtedness having a scheduled maturity on or prior to the date that is 91 days after the Stated Maturity of the Notes.
Disqualified Stock shall not include Capital Stock which is issued to any plan for the benefit of employees of the Parent or its Subsidiaries or by any such plan to such employees solely because it may be required to be repurchased by the Parent or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations. Disqualified Stock shall not include Common Units.
“fair market value” means the price that would be paid in an arm’s-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy. For purposes of determining compliance with Article 10 of this Indenture, any determination that the fair market value of assets other than cash or Temporary Cash Investments is equal to or greater than $100,000,000 shall be as determined in good faith by the Board of Directors of the Parent, whose determination shall be conclusive if evidenced by a Board Resolution, and otherwise by the principal financial officer of the Parent acting in good faith, each of whose determination shall be conclusive.
“Four Quarter Period” means, for purposes of calculating the Interest Coverage Ratio with respect to any Transaction Date, the then most recent four fiscal quarters prior to such Transaction Date for which reports have been filed with the SEC or provided to the Trustee pursuant to Section 10.8 (or if no such reports have yet been required to be filed with the SEC, for which internal financial statements are available).
“Guaranty” means the Guarantee by the Parent for payment of the Notes by the Parent.
“Incur” means, with respect to any Indebtedness, to incur, create, issue, assume, Guarantee or otherwise become liable with respect to, or become responsible for, the payment of, contingently or otherwise, such Indebtedness, including an “Incurrence” of Acquired Indebtedness; provided, however, that neither the accrual of interest, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, nor the accretion of original issue discount shall be considered an Incurrence of Indebtedness.
“Indebtedness” means, with respect to any Person at any date of determination (without duplication):
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) the face amount of letters of credit or other similar instruments (excluding obligations with respect to letters of credit (including trade letters of credit) securing obligations (other than obligations described in (1) or (2) above or (5), (6) or (7) below) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than the fifth Business Day following receipt by such Person of a demand for reimbursement);
(4) all unconditional obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services, except Trade Payables;
(5) all Capitalized Lease Obligations and Attributable Debt;
(6) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided, however, that the amount of such Indebtedness shall be the lesser of (A) the fair market value of such asset at that date of determination and (B) the amount of such Indebtedness;
7
(7) all Indebtedness of other Persons Guaranteed by such Person to the extent such Indebtedness is Guaranteed by such Person; and
(8) to the extent not otherwise included in this definition or the definition of Consolidated Interest Expense, obligations under Currency Agreements and Interest Rate Agreements.
The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations of the type described above and, with respect to obligations under any Guarantee, the maximum liability upon the occurrence of the contingency giving rise to the obligation; provided, however, that:
(1) the amount outstanding at any time of any Indebtedness issued with original issue discount shall be deemed to be the face amount with respect to such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at the date of determination in conformity with GAAP;
(2) Indebtedness shall not include any liability for foreign, federal, state, local or other taxes;
(3) for the avoidance of doubt, Indebtedness of the Parent or any Subsidiary shall not include any liability required to be recognized as a result of variable interest accounting that the Parent or such Subsidiary is not otherwise legally liable for;
(4) Indebtedness shall not include any indemnification, earnouts, adjustment or holdback of purchase price or similar obligations, in each case, incurred or assumed in connection with the acquisition or disposition of any business, assets or a Subsidiary, other than guarantees of Indebtedness incurred by any Person acquiring all or any portion of such business, assets or Subsidiary for the purpose of financing such acquisition;
(5) Indebtedness shall not include contingent obligations under performance bonds, performance guarantees, surety bonds, appeal bonds or similar obligations incurred in the ordinary course of business and consistent with past practices; and
(6) Indebtedness shall not include intercompany indebtedness.
“Interest Coverage Ratio” means, on any Transaction Date, the ratio of:
| (x) | the aggregate amount of Consolidated EBITDA for the then applicable Four Quarter Period to |
| (y) | the aggregate Consolidated Interest Expense during such Four Quarter Period. |
In making the foregoing calculation,
(1) pro forma effect shall be given to any Indebtedness Incurred or repaid (other than in connection with an Asset Acquisition or Asset Disposition) during the period (“Reference Period”) commencing on the first day of the Four Quarter Period and ending on the Transaction Date (other than Indebtedness Incurred or repaid under a revolving credit or similar arrangement), in each case as if such Indebtedness had been Incurred or repaid on the first day of such Reference Period;
(2) Consolidated Interest Expense attributable to interest on any Indebtedness (whether existing or being Incurred) computed on a pro forma basis and bearing a floating interest rate shall be computed as if the rate in effect on the Transaction Date (taking into account any Interest Rate Agreement
8
applicable to such Indebtedness if such Interest Rate Agreement has a remaining term in excess of 12 months or, if shorter, at least equal to the remaining term of such Indebtedness) had been the applicable rate for the entire period;
(3) pro forma effect shall be given to Asset Dispositions, Asset Acquisitions and Permitted Mortgage Investments (including giving pro forma effect to the application of proceeds of any Asset Disposition and any Indebtedness Incurred or repaid in connection with any such Asset Acquisitions or Asset Dispositions) that occur during such Reference Period or subsequent to the end of the related Four Quarter Period as if they had occurred and such proceeds had been applied on the first day of such Reference Period and after giving effect to Pro Forma Cost Savings;
(4) pro forma effect shall be given to asset dispositions and asset acquisitions (including giving pro forma effect to (i) the application of proceeds of any asset disposition and any Indebtedness Incurred or repaid in connection with any such asset acquisitions or asset dispositions, (ii) expense and cost reductions calculated on a basis consistent with Regulation S-X under the Exchange Act and (iii) Pro Forma Cost Savings) that have been made by any Person that has become a Subsidiary or has been merged with or into the Parent or any of its Subsidiaries during such Reference Period but subsequent to the end of the related Four Quarter Period and that would have constituted asset dispositions or asset acquisitions during such Reference Period but subsequent to the end of the related Four Quarter Period had such transactions occurred when such Person was a Subsidiary as if such asset dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions and had occurred on the first day of such Reference Period;
(5) the Consolidated Interest Expense attributable to discontinued operations, as determined in accordance with GAAP, shall be excluded, but only to the extent that the obligations giving rise to such Consolidated Interest Expense shall not be obligations of the specified Person or any of its Subsidiaries following the Transaction Date;
(6) interest on Indebtedness that may optionally be determined at an interest rate based on a factor of a prime or similar rate, a Eurocurrency interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if not, then based upon such operational rate chosen as the Parent may designate;
(7) interest on any Indebtedness under a revolving credit facility computed on a pro forma basis shall be computed based on the average daily balance of such Indebtedness during the applicable period except as set forth in clause (1) of this definition; and
(8) interest on a Capitalized Lease Obligation shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Parent to be the rate of interest implicit in such Capitalized Lease Obligation in accordance with GAAP.
provided, however, that to the extent that clauses (3) and (4) of this paragraph requires that pro forma effect be given to an Asset Acquisition, Asset Disposition, Permitted Mortgage Investment, asset acquisition or asset disposition, as the case may be, such pro forma calculation shall be based upon the four full fiscal quarters immediately preceding the Transaction Date of the Person, or division or line of business, or one or more properties, of the Person that is acquired or disposed of to the extent that such financial information is available or otherwise a reasonable estimate thereof is available.
“Interest Rate Agreement” means any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, option or future contract or other similar agreement or arrangement with respect to interest rates.
“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof or any agreement to give any security interest).
9
“Moody’s” means Moody’s Investors Service, Inc. and its successors.
“Notes” means, collectively, the Issuer’s 3.200% Senior Notes due 2031 issued in accordance with Section 3.3 (whether issued on the Closing Date, issued as Additional Notes or otherwise issued after the Closing Date) treated as a single class of securities under this Indenture.
“Par Call Date” means September 1, 2031.
“Permitted Business” means any business activity (including Permitted Mortgage Investments) in which the Parent and its Subsidiaries are engaged or propose to be engaged in (as described in the Prospectus Supplement) on the Closing Date, any business activity related to properties customarily constituting assets of a healthcare REIT, or any business reasonably related, ancillary or complementary thereto, or reasonable expansions or extensions thereof.
“Permitted Mortgage Investment” means any investment in secured notes, mortgage, deeds of trust, collateralized mortgage obligations, commercial mortgage-backed securities, other secured debt securities, secured debt derivative or other secured debt instruments, so long as such investment relates directly or indirectly to real property that constitutes or is used as a skilled nursing home center, hospital, assisted living facility, medical office or other property customarily constituting an asset of a real estate investment trust specializing in healthcare or senior housing property (such as, for clarity purposes, behavioral health facilities, including addiction treatment centers).
“Preferred Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) that have a preference on liquidation or with respect to distributions over any other class of Capital Stock, including preferred partnership interests, whether general or limited, or such Person’s preferred or preference stock, whether outstanding on the Closing Date or issued thereafter, including all series and classes of such preferred or preference stock.
“principal” means, with respect to the Notes, the principal of and premium, if any, on the Notes.
“Pro Forma Cost Savings” means, with respect to any period, the reductions in costs (including such reductions resulting from employee terminations, facilities consolidations and closings, standardization of employee benefits and compensation policies, consolidation of property, casualty and other insurance coverage and policies, standardization of sales and distribution methods, reductions in taxes other than income taxes) that occurred during such period that are (1) directly attributable to an asset acquisition or (2) implemented and that are supportable and quantifiable by the underlying records of such business, as if, in the case of each of clauses (1) and (2), all such reductions in costs had been effected as of the beginning of such period, decreased by any incremental expenses incurred or to be incurred during such period in order to achieve such reduction in costs, all such costs to be determined in good faith by the chief financial officer of the Parent.
“Prospectus Supplement” means the Prospectus Supplement dated September 21, 2021 pursuant to which the Notes issued on the Closing Date were offered to investors.
“Real Estate Assets” of a Person means, as of any date, the tangible and intangible real estate assets (including investments in direct financing leases) of such Person and its Subsidiaries on such date, on a consolidated basis determined in accordance with GAAP.
“Real Estate Revenues” means, with respect to any Real Estate Asset of the Parent and its Subsidiaries owned as of the closing of the Separation and the REIT Conversion Merger, the annualized cash rental revenues generated by such Real Estate Asset during the three months ended March 31, 2013.
“Record Date” means the applicable record date specified in the Notes.
“Reference Period” has the meaning specified in the definition of Interest Coverage Ratio.
10
“REIT Conversion Merger” means the merger of Sun Healthcare Group, Inc. with and into the Parent, with the Parent surviving the merger and holders of Sun Healthcare Group, Inc. common stock receiving shares of Parent common stock in exchange for shares of Sun Healthcare Group, Inc. common stock.
“S&P” means Standard & Poor’s Ratings Services and its successors.
“Sale and Leaseback Transaction” means any direct or indirect arrangement with any Person or to which any such Person is a party, providing for the leasing to the Parent or any Subsidiary of any property, whether owned by the Parent or any such Subsidiary at the Closing Date or later acquired, which has been or is to be sold or transferred by the Parent or any such Subsidiary to such Person or any other Person from whom funds have been or are to be advanced by such Person on the security of such property.
“SEC” means the U.S. Securities and Exchange Commission.
“Secured Indebtedness” means any Indebtedness secured by a Lien upon the property of the Parent or any of its Subsidiaries; provided that in no event shall the obligations under the Credit Agreement constitute “Secured Indebtedness” as a result of any security interest granted to the Bank Agent, any issuer of a letter of credit under the Credit Agreement or any swing line lender under the Credit Agreement, solely in any cash collateral or any account or other property, including proceeds thereof, established for the purpose of securing obligations in respect of letter of credit and/or swing line loans under the Credit Agreement, exchange rate fluctuations or otherwise to the extent required pursuant to Section 2.17 of the Credit Agreement as in effect on the Closing Date.
“Securities Act” means the U.S. Securities Act of 1933, as amended, or any successor statute or statutes thereto.
“Separation” means the distribution by Sun Healthcare Group, Inc. to the holders of Sun Healthcare Group, Inc. common stock on a pro rata basis all of the outstanding shares of common stock of SHG Services, Inc. (which was renamed Sun Healthcare Group, Inc. in connection with such distribution), together with an additional cash distribution.
“Significant Subsidiary,” with respect to any Person, means any Subsidiary of such Person that satisfies the criteria for a “significant subsidiary” set forth in Rule 1-02(w) of Regulation S-X under the Exchange Act.
“Statistical Release” means the statistical release designated “H.15” or any successor publication which is published by the Federal Reserve System (or companion online data resource published by the Federal Reserve System) and which establishes yields on actively traded United States government securities adjusted to constant maturities, or, if such statistical release is not published at the time of any determination under the indenture, then such other reasonably comparable index designated by the Issuer.
“Temporary Cash Investment” means any of the following:
(1) United States dollars;
(2) direct obligations of the United States of America or any agency thereof or obligations fully and unconditionally guaranteed by the United States of America or any agency thereof;
(3) time deposits accounts, term deposit accounts, time deposits, bankers’ acceptances, certificates of deposit, Eurodollar time deposits and money market deposits maturing within twelve months or less of the date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States of America, any state thereof, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $500,000,000 and has outstanding debt which is rated “A” (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act) or any money-market fund sponsored by a registered broker dealer or mutual fund distributor;
11
(4) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (2) and (3) above entered into with a bank meeting the qualifications described in clause (3) above;
(5) commercial paper, maturing not more than six months after the date of acquisition, issued by a corporation (other than an Affiliate of the Parent) organized and in existence under the laws of the United States of America, any state of the United States of America with a rating at the time as of which any investment therein is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher) according to S&P;
(6) securities with maturities of six months or less from the date of acquisition issued or fully and unconditionally guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or Moody’s; and
(7) any fund investing substantially all of its assets in investments that constitute Temporary Cash Investments of the kinds described in clauses (1) through (6) of this definition.
“Total Assets” means, for any Person as of any date, the sum of (i) in the case of any Real Estate Assets that were owned as of the closing of the Separation and REIT Conversion Merger, the Real Estate Revenues specified for such Real Estate Assets, divided by 0.095, plus (ii) the cost (original cost plus capital improvements before depreciation and amortization) of all Real Estate Assets acquired after the closing of the Separation and REIT Conversion Merger that are then owned by such Person or any of its Subsidiaries and (iii) the book value of all assets (excluding Real Estate Assets and non-lease intangibles) of such Person and its Subsidiaries on a consolidated basis determined in accordance with GAAP.
“Total Unencumbered Assets” means, for any Person as of any date, the Total Assets of such Person and its Subsidiaries as of such date, that do not secure any portion of Secured Indebtedness, on a consolidated basis determined in accordance with GAAP; provided, however, that in determining Total Unencumbered Assets as a percentage of the outstanding Unsecured Indebtedness for purposes of the covenant set forth in Section 10.7, all investments by the Parent and its Subsidiaries in unconsolidated joint ventures, unconsolidated limited partnerships, unconsolidated limited liability companies and other unconsolidated entities shall be excluded from Total Unencumbered Assets to the extent that such investments would have otherwise been included.
“Trade Payables” means, with respect to any Person, any accounts payable or any other indebtedness or monetary obligation to trade creditors created, assumed or Guaranteed by such Person or any of its Subsidiaries arising in the ordinary course of business in connection with the acquisition of goods or services.
“Transaction Date” means, with respect to the Incurrence of any Indebtedness by the Parent or any of its Subsidiaries, the date such Indebtedness is to be Incurred.
“Treasury Rate” means, with respect to any redemption date, the rate per year equal to the arithmetic mean (rounded to the nearest one-hundredth of one percent) of the yield to maturity for each of the five most recent days available through the most recent Statistical Release under the caption “Treasury Constant Maturities” for the maturity (rounded to the nearest month) corresponding to the remaining life to the Par Call Date of the Notes as of the redemption date. If no maturity exactly corresponds to such maturity, yields for the two published maturities most closely corresponding to such maturity shall be calculated pursuant to the immediately preceding sentence and the Treasury Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month. For the purposes of calculating the Treasury Rate, the most recent Statistical Release published at least three Business Days prior to the date of the notice of redemption shall be used.
“Unsecured Indebtedness” means any Indebtedness of the Parent or any of its Subsidiaries that is not Secured Indebtedness.
12
“U.S. Legal Tender” means such coin or currency of the United States of America that at the time of payment shall be legal tender for the payment of public and private debts.
“Wholly Owned” means, with respect to any Subsidiary of any Person, the ownership of all of the outstanding Capital Stock of such Subsidiary (other than any director’s qualifying shares or investments by individuals mandated by applicable law) by such Person or one or more Wholly Owned Subsidiaries of such Person.
(c) Section 1.1 of the Base Indenture shall be amended so that the following definitions in the Base Indenture shall be deleted in their entirety and replaced with the following:
“Act” when used with respect to any Holders has the meaning specified in Section 1.10.
“Agent” means any Security Registrar or Paying Agent.
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting), including partnership or limited liability company interests, whether general or limited, in the equity of such Person, whether outstanding on the Closing Date or issued thereafter, including all Common Stock and Preferred Stock.
“Depositary” or “Depository” means The Depository Trust Company, New York, New York, or a successor thereto registered under the Exchange Act or other applicable statute or regulation.
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and, without limiting the generality of the foregoing, any obligation of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person (whether arising by virtue of partnership arrangements, or by agreements to keep-well or to maintain financial statement conditions or otherwise); or
(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);
provided, however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guarantor” means the Parent.
“Holder” means any registered holder on the books of the Security Registrar, from time to time, of the Notes.
“Interest Payment Date” means the Stated Maturity of an installment of interest on the Notes.
“Officer’s Certificate” means a certificate signed by (a) an Officer of the Parent and (b) an Officer of the Issuer or an Officer of the Parent acting in the Parent’s capacity as the general partner of the Issuer.
“Opinion of Counsel” means a written opinion from legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of, or counsel to, the Parent, the Issuer or the Trustee.
“Outstanding” or “outstanding,” when used with respect to the Notes, shall be construed consistent with Sections 3.12 and 3.13.
“Redemption Date,” when used with respect to any Note to be redeemed, means the date fixed for such redemption pursuant to this Indenture and the Notes.
13
“Redemption Price,” when used with respect to any Note to be redeemed, means the price fixed for such redemption, payable in immediately available funds, pursuant to this Indenture and the Notes.
“Responsible Officer” means, when used with respect to the Trustee, any officer in the Corporate Trust Office of the Trustee to whom any corporate trust matter is referred because of such officer’s knowledge of and familiarity with the particular subject and shall also mean any officer who shall have direct responsibility for the administration of this Indenture.
“Stated Maturity” means:
(1) with respect to any debt security, the date specified in such debt security as the fixed date on which the final installment of principal of such debt security is due and payable; and
(2) with respect to any scheduled installment of principal of or interest on any debt security, the date specified in such debt security as the fixed date on which such installment is due and payable.
provided, that Stated Maturity shall not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof.
“U.S. Government Obligations” means direct obligations of, obligations guaranteed by, or participations in pools consisting solely of obligations of or obligations guaranteed by, the United States of America for the payment of which obligations or guarantee the full faith and credit of the United States of America is pledged and that are not callable or redeemable at the option of the issuer thereof.
SECTION 2.03. Changes to Article 1 of the Base Indenture
Sections 1.2 through 1.18 enumerated in Article 1 of the Base Indenture shall be deleted and replaced in their entirety by the following:
“SECTION 1.2. Other Definitions.
| Term |
Defined in Section | |
| “Additional Notes” | 3.3 | |
| “Authentication Order” | 3.3 | |
| “Base Indenture” | Preamble (Supplemental Indenture) | |
| “Confidential Datasite” | 10.8 | |
| “Covenant Defeasance” | 13.1 | |
| “Defaulted Interest” | 3.7 | |
| “Event of Default” | 5.1 | |
| “Global Note” | 3.01 (Supplemental Indenture) | |
| “Indenture” | Preamble (Supplemental Indenture) | |
| “Initial Notes” | 3.3 | |
| “Issuer” | Preamble | |
| “Legal Defeasance” | 13.2 | |
| “Parent” | Preamble | |
| “Physical Notes” | 3.01 (Supplemental Indenture) | |
| “Securities” | Recitals | |
| “Security Register” | 3.5 | |
| “Security Registrar” | 3.5 | |
| “Supplemental Indenture” | Preamble (Supplemental Indenture) |
SECTION 1.3. Incorporation by Reference of Trust Indenture Act. Whenever this Indenture refers to a provision of the Trust Indenture Act, such provision is incorporated by reference in, and made a part of, this Indenture. The following Trust Indenture Act terms used in this Indenture have the following meanings:
“indenture securities” means the Notes.
14
“obligor” on the indenture securities means the Issuer, the Guarantor or any other obligor on the Notes.
All other Trust Indenture Act terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by SEC rule and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.4. Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(3) “or” is not exclusive;
(4) words in the singular include the plural, and words in the plural include the singular;
(5) “herein,” “hereof” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(6) the words “including,” “includes” and similar words shall be deemed to be followed by “without limitation”;
(7) unsecured Indebtedness shall not be deemed to be subordinate or junior to secured Indebtedness merely by virtue of its nature as unsecured Indebtedness;
(8) secured Indebtedness shall not be deemed to be subordinate or junior to any other secured Indebtedness merely because it has a junior priority with respect to the same collateral;
(9) the principal amount of any noninterest bearing or other discount security at any date shall be the principal amount thereof that would be shown on a balance sheet of the issuer dated such date prepared in accordance with GAAP;
(10) the amount of any Preferred Stock that does not have a fixed redemption, repayment or repurchase price shall be the maximum liquidation value of such Preferred Stock; and
(11) all references to the date the Notes were originally issued shall refer to the Closing Date, except as otherwise specified.
SECTION 1.5. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included in this Indenture by the Trust Indenture Act, such required or deemed provision shall control.
SECTION 1.6. Notices. Any notices or other communications required or permitted hereunder shall be in writing, and shall be sufficiently given if made by hand delivery, by telex, by nationally recognized
15
overnight courier service, by telecopier or registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to the Issuer:
Sabra Health Care Limited Partnership
18500 Von Karman, Suite 550
Irvine, CA 92612
Attention: Richard K. Matros, Harold W. Andrews, Jr. and Michael Costa
Email: ***
with a copy to:
Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, D.C. 20004
Attention: Cristina Arumi, Esq.
Email: ***
and
O’Melveny & Myers LLP
610 Newport Center Drive, 17th Floor
Newport Beach, CA 92660
Attention: Andor Terner, Esq.
Email: ***
If to Parent:
Sabra Health Care REIT Inc.
18500 Von Karman, Suite 550
Irvine, CA 92612
Attention: Richard K. Matros, Harold W. Andrews, Jr. and Michael Costa
Email: ***
with a copy to:
Hogan Lovells US LLP
Columbia Square
555 Thirteenth Street, NW
Washington, D.C. 20004
Attention: Cristina Arumi, Esq.
Email: ***
and
O’Melveny & Myers LLP
610 Newport Center Drive, 17th Floor
Newport Beach, CA 92660
Attention: Andor Terner, Esq.
Email: ***
16
if to the Trustee:
Wells Fargo Bank, National Association
CTSO Mail Operations
600 South 4th Street, 7th FloorMAC: N9300-070
Minneapolis, MN 55415
Attention: Corporate Trust Services – Michael Tu/Sabra Health Care Limited
Partnership Administrator
Each of the Issuer and the Trustee by written notice to each other such Person may designate additional or different addresses for notices to such Person. Any notice or communication to the Issuer and the Trustee, shall be deemed to have been given or made as of the date so delivered if personally delivered; when replied to; when receipt is acknowledged, if telecopied; five calendar days after mailing if sent by registered or certified mail, postage prepaid (except that a notice of change of address shall not be deemed to have been given until actually received by the addressee); and next Business Day if by nationally recognized overnight courier service.
Any notice or communication mailed to a Holder shall be delivered electronically or mailed to him by first class mail or other equivalent means at his address as it appears on the registration books of the Security Registrar and shall be sufficiently given to him if so delivered electronically or mailed within the time prescribed.
Failure to deliver electronically or mail a notice or communication to a Holder or any defect in it shall not affect its sufficiency with respect to other Holders. If a notice or communication is delivered electronically or mailed in the manner provided above, it is duly given, whether or not the addressee receives it.
SECTION 1.7. Communications by Holders with Other Holders. Holders may communicate pursuant to Trust Indenture Act § 312(b) with other Holders with respect to their rights under this Indenture, the Notes or the Guaranty. The Issuer, the Trustee, the Security Registrar and any other Person shall have the protection of Trust Indenture Act § 312(c).
SECTION 1.8. Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Issuer to the Trustee to take any action under this Indenture, the Issuer shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture and shall consist of:
(1) an Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent to be performed or effected by the Issuer, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
SECTION 1.9. Statements Required in Certificate or Opinion. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture, other than the Officer’s Certificate required by Section 10.4, shall include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(2) 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;
17
(3) a statement that, in the opinion of such Person, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with or satisfied; and
(4) a statement as to whether or not, in the opinion of each such Person, such condition or covenant has been complied with; provided, however, that with respect to matters of fact, an Opinion of Counsel may rely on an Officer’s Certificate or certificates of public officials.
SECTION 1.10. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and the Issuer and any agent of the Trustee or the Issuer, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner that the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
(c) The ownership of Securities and the principal amount and serial numbers of Securities held by any Person, and the date of holding the same, shall be proved by the Security Register.
(d) If the Issuer shall solicit from the Holders of any Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer may, at its option, by Board Resolution, fix in advance a record date for the determination of Holders of Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Issuer shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such 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 for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided, that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other action by the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, the Issuer or the Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.
SECTION 1.11. Rules by Paying Agent or Security Registrar. The Paying Agent or Security Registrar may make reasonable rules and set reasonable requirements for their functions.
SECTION 1.12. Legal Holidays. If an Interest Payment Date, maturity date or Redemption Date is not a Business Day, payment may be made on the next succeeding day that is a Business Day, without any interest or other payment in respect of the payment subject to delay, with the same force and effect as if made on such interest payment date, maturity date or redemption date, as the case may be.
18
SECTION 1.13. Governing Law; Waiver of Jury Trial. This Indenture, the Notes and the Guaranty will be governed by and construed in accordance with the laws of the State of New York. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Indenture, the Notes, the Guaranty or the transaction contemplated hereby.
SECTION 1.14. No Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Issuer or any of its Subsidiaries. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 1.15. No Recourse Against Others. No recourse for the payment of the principal of, premium, if any, or interest on any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Parent or the Issuer in this Indenture, or in any of the Notes or the Guaranty or because of the creation of any Indebtedness represented hereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Parent or the Issuer or of any successor Person thereof. Each Holder, by accepting the Notes, waives and releases all such liability. Such waiver and release is part of the consideration for issuance of the Notes.
SECTION 1.16. Successors. All agreements of the Issuer and the Guarantor in this Indenture, the Notes and the Guaranty shall bind their respective successors. All agreements of the Trustee in this Indenture shall bind its successor.
SECTION 1.17. Effect of Headings and Table of Contents. The Article and Section headings herein, the Trust Indenture Act reconciliation, and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.18. Benefits of Indenture. Nothing in this Supplemental Indenture or in the Notes or in the Guaranty, express or implied, shall give to any Person, other than the parties hereto, any Agent, any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders of Notes, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.
SECTION 1.19. Duplicate Originals. All parties may sign any number of copies of this Indenture. Each signed copy or counterpart shall be an original, but all of them together shall represent the same agreement. Delivery of an executed counterpart of a signature page to this Indenture by facsimile, .pdf transmission, email or other electronic means shall be effective as delivery of a manually executed counterpart of this Indenture.
SECTION 1.20. Severability. To the extent permitted by applicable law, in case any one or more of the provisions in this Indenture, in the Notes or in the Guaranty shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 1.21. U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
SECTION 1.22. Force Majeure. 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, any act or provision of any present or future law or
19
regulation or governmental authority, labor disputes, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes, disease, epidemic or pandemic, quarantine, national emergency or acts of God, and interruptions, loss or malfunctions or utilities, communications or computer (software and hardware) services, communications system failure, malware or ransomware or unavailability of the Federal Reserve Bank wire or telex system or other wire or other funds transfer system, or unavailability of any securities clearing system; 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.”
ARTICLE 3
THE NOTES
SECTION 3.01. Form.
In accordance with Article 2 of the Base Indenture, the Initial Notes and any Additional Notes shall be issued initially in the form of one or more global Notes in registered form, substantially in the form set forth in Exhibit A, deposited with the Trustee, as custodian for the Depository, duly executed by the Issuer (and having an executed Guaranty from the Guarantor endorsed thereon substantially in the form of Exhibit B) and authenticated by the Trustee as hereinafter provided and shall bear any legends required by applicable law (together with the Initial Notes in global form, the “Global Notes”) or as Physical Notes. The aggregate principal amount of the Global Notes may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depository, as hereinafter provided. Notes issued in exchange for interests in a Global Note may be issued in the form of permanent certificated Notes in registered form in substantially the form set forth in Exhibit A and bearing the applicable legends, if any, (the “Physical Notes”). Additional Notes ranking pari passu with the Initial Notes (as defined in Section 3.3) may be created and issued from time to time by the Issuer without notice to or consent of the Holders and shall be consolidated with and form a single class with the Initial Notes and shall have the same terms as to status, redemption or otherwise (other than with respect to the purchase price thereof and the date from which the interest accrues) as the Initial Notes; provided that the Issuer’s ability to issue Additional Notes shall be subject to the Issuer’s compliance with Section 10.6. Except as described under Article 9, the Initial Notes and any Additional Notes subsequently issued under this Indenture will be treated as a single class for all purposes under this Indenture, including waivers, amendments, redemptions and offers to purchase, and shall vote together as one class on all matters with respect to the Notes; provided further that if the Additional Notes are not fungible with the Notes for U.S. Federal income tax purposes the Additional Notes will have a separate CUSIP number, if applicable. Unless the context requires otherwise, references to “Notes” for all purposes of this Indenture include any Additional Notes that are actually issued.
SECTION 3.02. Title and Terms.
The terms and provisions contained in the Notes and the Guaranty shall constitute, and are hereby expressly made, a part a part of this Supplemental Indenture and, to the extent applicable, the Issuer, the Guarantor and the Trustee, by their execution and delivery of this Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
SECTION 3.03. Changes to Article 3 of the Base Indenture.
(a) Section 3.2 of the Base Indenture shall be deleted in its entirety and replaced with the following:
“SECTION 3.2. Denominations. The Notes shall be issuable only in fully registered form, without coupons, in denominations of $2,000 of principal amount and any integral multiple of $1,000 in excess thereof.”
20
(b) Section 3.3 of the Base Indenture shall be deleted in its entirety and replaced with the following:
“SECTION 3.3. Execution and Authentication; Additional Notes. One Officer of the Issuer or an Officer of the Parent acting in its capacity as the general partner of the Issuer (who shall have been duly authorized by all requisite corporate actions) shall sign the Notes for the Issuer by manual, facsimile, .pdf attachment or by other means of electronic transmission showing such signature. One Officer of the Guarantor (who shall have been duly authorized by all requisite corporate actions) shall sign the Guaranty for the Guarantor by manual, facsimile, .pdf attachment or by other means of electronic transmission showing such signature.
If an Officer whose signature is on a Note or Guaranty, as the case may be, was an Officer at the time of such execution but no longer holds that office at the time the Trustee authenticates the Note, the Note shall nevertheless be valid.
A Note (and the Guaranty in respect thereof) shall not be valid until an authorized signatory of the Trustee manually signs the certificate of authentication on the Note. The signature shall be conclusive evidence that the Note has been authenticated under this Indenture.
The Trustee shall authenticate (i) on the Closing Date, Notes for original issue in the aggregate principal amount not to exceed $800,000,000 (the “Initial Notes”), and (ii) additional Notes (the “Additional Notes”) in an unlimited amount (so long as not otherwise prohibited by the terms of this Indenture, including Section 10.6), in each case upon a written order of the Issuer in the form of a certificate of an Officer of the Issuer or an Officer of the Parent acting in its capacity as the general partner of the Issuer (an “Authentication Order”). Each such Authentication Order shall specify the amount of Notes to be authenticated and the date on which the Notes are to be authenticated, whether the Notes are to be Initial Notes or Additional Notes and whether the Notes are to be issued as Physical Notes or Global Notes or such other information as the Trustee may reasonably request. In addition, with respect to authentication pursuant to clause (ii) of the first sentence of this paragraph, the first such Authentication Order from the Issuer shall be accompanied by an Opinion of Counsel of the Issuer stating that:
| • | the form and terms of such Notes have been established in conformity with the provisions of this Indenture; |
| • | that all conditions precedent set forth in this Indenture to the authentication and delivery of such Notes have been complied with and that such Notes, when authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, subject to bankruptcy, insolvency, fraudulent conveyance, moratorium, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors’ rights and to general equity principles; and |
| • | as to such other matters as the Trustee may reasonably request. |
All Notes issued under this Indenture shall be treated as a single class for all purposes under this Indenture. The Additional Notes shall bear any legend required by applicable law.
The Trustee may appoint an authenticating agent reasonably acceptable to the Issuer to authenticate Notes. Unless otherwise provided in the appointment, an authenticating agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Issuer and Affiliates of the Issuer.”
(c) The first sentence of the fifth paragraph of Section 3.5 of the Base Indenture shall be amended to delete the following “or if any time the Depositary for the Securities of such series shall no longer be eligible under Section 3.3”.
(d) The last paragraph of Section 3.5 of the Base Indenture shall be deleted in its entirety and replaced with the following:
“Without the prior written consent of the Issuer, the Security Registrar shall not be required to register the transfer of or exchange of any Note (i) during a period beginning at the opening of business 15 days
21
before a notice of redemption of Notes is electronically sent or mailed and ending at the close of business on the day such notice of redemption of Notes is electronically sent or mailed, (ii) selected for redemption in whole or in part pursuant to Article 11, except the unredeemed portion of any Note being redeemed in part and (iii) beginning at the opening of business on any Record Date and ending on the close of business on the related Interest Payment Date.”
(d) Section 3.7(a) of the Base Indenture shall be deleted in its entirety and replaced with the following:
“(a) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities affected (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, 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 days and not less than 10 days prior to the date of the proposed payment and not less than 10 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 sent, first class postage prepaid or in accordance with applicable procedures of the Depositary, to each Holder of such Securities at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been sent 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 (b).”
(d) The following shall be added to the Base Indenture as Section 3.12 and Section 3.13:
“SECTION 3.12. Outstanding Notes. Notes outstanding at any time are all the Notes that have been authenticated by the Trustee except those cancelled by it, those delivered to it for cancellation and those described in this Section 3.12 as not outstanding. A Note does not cease to be outstanding because the Issuer, the Guarantor or any of their respective Affiliates hold the Note (subject to the provisions of Section 3.13).
If a Note is replaced pursuant to Section 3.6 (other than a mutilated Note surrendered for replacement), it ceases to be outstanding unless a Responsible Officer of the Trustee receives proof satisfactory to it that the replaced Note is held by a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender of such Note and replacement thereof pursuant to Section 3.6.
If the principal amount of any Note is considered paid under Section 10.1, it ceases to be outstanding and interest ceases to accrue. If on a Redemption Date or the Stated Maturity the Trustee or Paying Agent (other than the Issuer or an Affiliate thereof) holds U.S. Legal Tender or U.S. Government Obligations sufficient to pay all of the principal of, premium, if any, and interest due on the Notes payable on that date, then on and after that date such Notes cease to be outstanding and interest on them ceases to accrue.
SECTION 3.13. Treasury Notes. In determining whether the Holders of the required principal amount of Notes have concurred in any direction, waiver or consent, Notes owned by the Issuer or any of its Affiliates shall be disregarded as required by the Trust Indenture Act, except that, for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Notes that a Responsible Officer of the Trustee actually knows are so owned shall be disregarded. Notes so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right to deliver any such direction, waiver or consent with respect to the Notes and that the pledgee is not an Issuer or any obligor upon the Notes or any Affiliate of the Issuer or of such other obligor.”
22
ARTICLE 4
DISCHARGE OF INDENTURE
SECTION 4.01. Changes to Article 4 of the Base Indenture
Sections 4.1 through 4.2 enumerated in Article 4 of the Base Indenture shall be deleted and replaced in their entirety by the following:
“SECTION 4.1. Termination of the Issuer’s Obligations. The Issuer may terminate its obligations under the Notes and this Indenture and the obligations of the Guarantor under the Guaranty and this Indenture, and this Indenture shall cease to be of further effect, except those obligations referred to in the penultimate paragraph of this Section 4.1, if:
(1) either
(A) all the Notes theretofore authenticated and delivered (except lost, stolen or destroyed Notes which have been replaced or paid and Notes 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) have been delivered to the Trustee for cancellation; or
(B) all Notes not theretofore delivered to the Trustee for cancellation (1) have become due and payable or (2) will become due and payable within one year, or are to be called for redemption within one year, under arrangements reasonably 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 has irrevocably deposited or caused to be deposited with the Trustee funds in an amount sufficient to pay and discharge the entire Indebtedness on the Notes not theretofore delivered to the Trustee for cancellation, for principal of, premium, if any, and interest on the Notes to the date of maturity or redemption, as the case may be, together with irrevocable instructions from the Issuer directing the Trustee to apply such funds to the payment thereof at maturity or redemption, as the case may be;
(2) the Issuer has paid all other sums payable under this Indenture by the Parent or the Issuer, and
(3) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel stating that all conditions precedent under this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.
In the case of clause (B) of this Section 4.1, and subject to the next sentence and notwithstanding the foregoing paragraph, the Issuer’s obligations in Sections 3.5, 3.6, 3.12, 6.7, 7.2, 10.1, 10.2, 10.3 (as to legal existence of the Issuer only), 13.4 and 13.5 shall survive until the Notes are no longer outstanding pursuant to the last paragraph of Section 3.12. After the Notes are no longer outstanding, the Issuer’s obligations in Sections 6.7, 13.4 and 13.5 shall survive. The provisions of Sections 13.3, 13.4 and 13.5 shall apply to any money, U.S. Legal Tender or U.S. Government Obligations or other funds deposited with the Trustee pursuant to this Article 4.
After such delivery or irrevocable deposit, the Trustee upon request shall acknowledge in writing the discharge of the Issuer’s obligations under the Notes and this Indenture except for those surviving obligations specified above.”
23
ARTICLE 5
DEFAULT AND REMEDIES
SECTION 5.01. Changes to Article 5 of the Base Indenture
(a) Sections 5.1 through 5.2 enumerated in Article 5 of the Base Indenture shall be deleted in their entirety and replaced by the following:
“SECTION 5.1. Events of Default. Each of the following is an “Event of Default”:
(1) default in the payment of principal of, or premium, if any, on any Note when they are due and payable at maturity, upon acceleration, redemption or otherwise;
(2) default in the payment of interest on any Note when they are due and payable, and such default continues for a period of 30 days;
(3) default in the performance or breach of the provisions in this Indenture applicable to mergers, consolidations and transfers of all or substantially all of the assets of the Parent;
(4) the Parent defaults in the performance of or breaches any other covenant or agreement of the Parent in this Indenture or under the Notes (other than a default specified in clause (1), (2) or (3) above) and such default or breach continues for 60 consecutive days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount of the Notes;
(5) there occurs with respect to any issue or issues of Indebtedness of the Parent or any Significant Subsidiary having an outstanding principal amount of $50,000,000 or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created,
(i) an event of default that has caused the holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such Indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such acceleration, and/or
(ii) the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within 30 days of such payment default;
(6) any final and non-appealable judgment or order (not covered by insurance) for the payment of money in excess of $50,000,000 in the aggregate for all such final judgments or orders against all such Persons (treating any deductibles, self-insurance or retention as not covered by insurance):
(i) shall be rendered against the Parent or any Significant Subsidiary and shall not be paid or discharged, and
(ii) there shall be any period of 60 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or discharged against all such Persons to exceed $50,000,000 during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(7) a court of competent jurisdiction enters a decree or order for:
(i) relief in respect of the Parent or any Significant Subsidiary in an involuntary case under any applicable Bankruptcy Law now or hereafter in effect,
24
(ii) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Parent or any Significant Subsidiary or for all or substantially all of the property and assets of the Parent or any Significant Subsidiary, or
(iii) the winding up or liquidation of the affairs of the Parent or any Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(8) the Parent or any Significant Subsidiary:
(i) commences a voluntary case under any applicable Bankruptcy Law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under such law,
(ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Parent or such Significant Subsidiary or for all or substantially all of the property and assets of the Parent or such Significant Subsidiary, or
(iii) effects any general assignment for the benefit of its creditors; or
(9) the Guaranty shall for any reason cease to be in full force and effect (except as otherwise not prohibited by this Indenture) or be declared null and void or any responsible officer of the Parent denies that it has any further liability under the Guaranty or gives notice to such effect (as evidenced by an Officer’s Certificate to such effect, delivered to the Trustee), in each case other than by reason of the termination of this Indenture or the release of the Guaranty in accordance with this Indenture.
SECTION 5.2. Acceleration. If an Event of Default (other than an Event of Default specified in clause (7) or (8) of Section 5.1 that occurs with respect to the Parent or the Issuer) occurs and is continuing under this Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding, by written notice to the Issuer (and to the Trustee if such notice is given by the Holders), may, and the Trustee at the request of the Holders of at least 25% in aggregate principal amount of the Notes then outstanding shall, declare the principal of, premium, if any, and accrued interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal of, premium, if any, and accrued interest shall be immediately due and payable. In the event of a declaration of acceleration because an Event of Default set forth in clause (5) of Section 5.1 has occurred and is continuing, such declaration of acceleration shall be automatically rescinded and annulled if the event of default triggering such Event of Default pursuant to clause (5) of Section 5.1 shall be remedied or cured by the Parent or the relevant Significant Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the declaration of acceleration with respect thereto.
If an Event of Default specified in clause (7) or (8) of Section 5.1 occurs with respect to the Parent or the Issuer, the principal of, premium, if any, and accrued interest on the Notes then outstanding shall automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. The Holders of at least a majority in principal amount of the outstanding Notes by written notice to the Issuer and to the Trustee may waive all past defaults and rescind and annul a declaration of acceleration and its consequences if:
(x) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived; and
(y) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction.
No such rescission shall affect any subsequent Default or impair any right consequent thereto.”
25
(b) The first sentence of Section 5.3 shall be amended to delete the references to “Section 5.1(a)” and to “Section 5.1(b)” and replace such references with “Section 5.1(1)” and “Section 5.1(2)”, respectively.
(c) The first sentence of Section 5.11 of the Base Indenture shall be amended to delete the reference to “Sections 5.8 and 9.2” and replace such reference with “Sections 3.13, 5.8 and 9.2”.
(d) The first sentence of Section 5.11 shall be amended to delete the references to “Section 5.1(a)” and to “Section 5.1(b)” and replace such references with “Section 5.1(1)” and “Section 5.1(2)”, respectively.
ARTICLE 6
THE TRUSTEE
SECTION 6.01. Changes to Article 6 of the Base Indenture.
(a) Section 6.2 of the Base Indenture shall be deleted in its entirety and replaced with the following:
“SECTION 6.2. Notice of Defaults. If a Default occurs and is continuing and is actually known to the Trustee pursuant to Section 6.3(l), the Trustee shall send to each Holder notice of the uncured Default within 60 days after the Trustee becomes aware of such Default. Except in the case of a Default in payment of principal of, or interest on, any Note, including an accelerated payment and the failure to make a payment on an Interest Payment Date, maturity date or Redemption Date, as applicable, pursuant to a Default in complying with the provisions of Article 14, the Trustee may withhold the notice if and so long as the Responsible Officers, of the Trustee in good faith determines that withholding the notice is in the interest of the Holders.”
(b) The third to last paragraph of Section 6.7 shall be amended to delete the references to “Section 5.1(d)” and to “Section 5.1(e)” and replace such references with “Section 5.1(7)” and “Section 5.1(8)”, respectively.
(c) The last paragraph of Section 6.14 of the Base Indenture shall be amended to delete the reference to “Section 1.3” and replace such reference with “Sections 1.8 and 1.9”.
ARTICLE 7
HOLDERS’ LISTS AND REPORTS BY THE TRUSTEE
SECTION 7.01. Changes to Article 7 of the Base Indenture.
(a) Sections 7.1 and 7.2 of the Base Indenture shall be deleted in their entirety and replaced with the following:
“SECTION 7.1. Issuers To Furnish Trustee Names and Addresses of Holders.
The Issuer will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than 7 Business Days prior to each June 1 and December 1 each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of the Notes as of the May 15 and November 15 preceding such June 1 or December 1, and
(b) at such other times as the Trustee may request in writing, within 15 days after the receipt by the Issuer of any such request, a list of similar form and content; provided, however, that, so long as the Trustee is the Security Registrar, no such list shall be required to be furnished.
26
SECTION 7.2. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders of Securities (i) contained in the most recent list furnished to the Trustee for each series as provided in Section 7.1, and (ii) received by the Trustee for each series in the capacity of Security Registrar if the Trustee is then acting in such capacity. The Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities shall be as provided by the Trust Indenture Act.”
(c) Every Holder of Securities, by receiving and holding the same, agrees with the Issuers, the Guarantor and the Trustee that neither the Issuers, the Guarantor nor the Trustee nor any Paying Agent nor any Security Registrar shall be held accountable by reason of the disclosure of any such information as to the names and addresses of Holders made pursuant to the Trust Indenture Act.”
(b) Section 7.4 of the Base Indenture shall be deleted in its entirety.
ARTICLE 8
GUARANTY
SECTION 8.01. Changes to Article 8 of the Base Indenture
The following shall be added to the Base Indenture as Section 8.3:
“SECTION 8.3. Execution and Delivery of Guaranty. To evidence the Guaranty set forth in Section 8.1, the Guarantor hereby agrees that a notation of the Guaranty substantially in the form included in Exhibit B shall be endorsed by an Officer of the Guarantor on each Note authenticated and delivered by the Trustee and that this Indenture shall be executed on behalf of the Guarantor by an Officer of the Guarantor.
The Guarantor hereby agrees that the Guaranty set forth in Section 8.1 shall remain in full force and effect notwithstanding any failure to endorse on each Note a notation of the Guaranty.
If an Officer whose signature is on this Indenture or on the Guaranty no longer holds that office at the time the Trustee authenticates the Note on which the Guaranty is endorsed, the Guaranty shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guaranty set forth in this Indenture on behalf of the Guarantor.”
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Changes to Article 9 of the Base Indenture
Sections 9.1 through 9.2 enumerated in Article 9 of the Base Indenture shall be deleted and replaced in their entirety by the following:
“SECTION 9.1. Without Consent of Holders. The Parent, the Issuer and the Trustee, together, may amend or supplement this Indenture, the Notes or the Guaranty without notice to or consent of any Holder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to provide for the assumption by a successor corporation of the obligations of the Parent or the Issuer under this Indenture;
27
(3) to provide for Global Notes in addition to or in place of Physical Notes;
(4) to add guarantees with respect to the Notes;
(5) to secure the Notes or the Guaranty;
(6) to add to the covenants of the Parent or the Issuer for the benefit of the Holders or to surrender any right or power conferred upon the Parent or the Issuer;
(7) to add any additional Events of Default for all or any of the Notes;
(8) to make any change that does not adversely affect the rights of any Holder in any material respect;
(9) to comply with any requirement of the SEC in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act;
(10) to make any amendment to the provisions of this Indenture relating to the transfer and legending of Notes; provided, however, that (a) compliance with this Indenture as so amended would not result in Notes being transferred in violation of the Securities Act or any other applicable securities law and (b) such amendment does not materially and adversely affect the rights of Holders to transfer Notes;
(11) to conform the text of this Indenture or the Guaranty or the Notes to any provision of the “Description of Notes” section of the Prospectus Supplement to the extent that such provision in the “Description of Notes” section of the Prospectus Supplement was intended to be a substantially verbatim recitation of a provision of this Indenture or the Guaranty or the Notes, as conclusively evidenced by an Officer’s Certificate delivered to the Trustee;
(12) to evidence and provide for the acceptance of appointment by a successor trustee, provided that the successor trustee is otherwise qualified and eligible to act as such under the terms of this Indenture;
(13) to provide for a reduction in the minimum denominations of the Notes;
(14) to comply with the rules of any applicable securities depositary; or
(15) to provide for the issuance of Additional Notes and related guarantees in accordance with the limitations set forth in this Indenture.
SECTION 9.2. With Consent of Holders. Subject to Section 5.7, the Issuer, the Guarantor and the Trustee, together, with the consent of the Holder or Holders of not less than a majority in aggregate principal amount of the outstanding Notes may amend or supplement this Indenture, the Notes or the Guaranty, without notice to any other Holders. Subject to Section 5.7, the Holder or Holders of not less than a majority in aggregate principal amount of the outstanding Notes may waive compliance with any provision of this Indenture, the Notes or the Guaranty without notice to any other Holders.
(b) Notwithstanding Section 9.2(a), without the consent of each Holder affected, no amendment or waiver may:
(1) change the Stated Maturity of the principal of, or any installment of interest on, the Notes;
(2) reduce the principal amount of, or premium, if any, or interest on, the Notes;
(3) change the place of payment of principal of, or premium, if any, or interest on, the Notes;
28
(4) impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity (or, in the case of a redemption, on or after the Redemption Date) of the Notes;
(5) reduce the above-stated percentage of outstanding Notes the consent of whose Holders is necessary to modify or amend this Indenture;
(6) waive a default in the payment of principal of, premium, if any, or interest on the Notes (except a rescission of the declaration of acceleration of the Notes by the Holders of at least a majority in aggregate principal amount of the Notes then outstanding and a waiver of the payment default that resulted from such acceleration, so long as all other existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by such declaration of acceleration, have been cured or waived);
(7) voluntarily release the Guaranty, except as permitted by this Indenture;
(8) reduce the percentage or aggregate principal amount of outstanding Notes the consent of whose Holders is necessary for waiver of compliance with Sections 5.2 and 5.4; or
(9) modify or change any provisions of this Indenture affecting the ranking of the Notes as to right of payment or the Guaranty in any manner adverse to the Holders of the Notes.
(c) It shall not be necessary for the consent of the Holders under this Section 9.2 to approve the particular form of any proposed amendment, supplement or waiver but it shall be sufficient if such consent approves the substance thereof.
(d) A consent to any amendment, supplement or waiver under this Indenture by any Holder that is given in connection with an exchange (in the case of an exchange offer) or a tender (in the case of a tender offer) of such Holder’s Notes shall not be rendered invalid by such tender or exchange.
(e) After an amendment, supplement or waiver under this Section 9.2 becomes effective, the Parent shall electronically send or mail to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. Any failure of the Parent to give such notice to all such Holders, or any defect therein, shall not, however, in any way impair or affect the validity of any such amendment, supplement or waiver.
(f) The Trustee shall not have any obligation to determine whether or not an amendment to this Indenture adversely affects the rights of any Holder in any material respect.”
ARTICLE 10
COVENANTS
SECTION 10.01. Changes to Article 10 of the Base Indenture
(a) Section 10.1 enumerated in Article 10 of the Base Indenture shall be deleted in its entirety and replaced with the following:
“SECTION 10.1. Payment of Notes. The Issuer shall pay the principal of, premium, if any, and interest on the Notes in the manner provided in the Notes and this Indenture. An installment of principal of, or interest on, the Notes shall be considered paid on the date it is due if the Trustee or Paying Agent (other than the Issuer or an Affiliate thereof) holds by 12:00 noon New York City time on that date cash in U.S. Dollars designated for and sufficient to pay the installment. Interest on the Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months.
29
The Issuer shall pay interest on overdue principal (including post-petition interest in a proceeding under any Bankruptcy Law), and overdue interest, to the extent lawful, at the same rate per annum borne by the Notes.”
(b) Sections 10.3 through 10.5 enumerated in Article 10 of the Base Indenture shall be deleted in their entirety and replaced with the following:
“SECTION 10.3. Corporate Existence. Except as otherwise permitted by Article 14, the Parent and the Issuer shall do or cause to be done all things necessary to preserve and keep in full force and effect their corporate, partnership or other existence, as applicable, and the related material rights (charter and statutory) and material franchises of the Parent and the Issuer; provided, however, that the Parent and the Issuer shall not be required to preserve any such right, franchise or corporate existence with respect to themselves if the Board of Directors of the Parent or any officer of the Parent shall determine that the preservation thereof is no longer necessary or desirable in the conduct of the business of the Parent or the Issuer, as applicable, and that the loss thereof could not reasonably be expected to have a material adverse effect on the ability of the Issuer to perform their obligations hereunder and provided, further, however, that the foregoing shall not prohibit a sale, transfer, conveyance, lease or disposal of any of the Parent’s assets in compliance with the terms of this Indenture.
SECTION 10.4. Compliance Certificate; Notice of Default. (a) The Parent shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Parent, commencing with December 31, 2021, an officer’s certificate signed by the principal executive officer, principal financial officer or principal accounting officer of the Parent stating that a review of the activities of the Parent and its Subsidiaries (including the Issuer) has been made under the supervision of the signing Officer with a view to determining whether the Parent and its Subsidiaries (including the Issuer) have kept, observed, performed and fulfilled their obligations under this Indenture and further stating, as to each such Officer signing such certificate, that, to the best of such Officer’s knowledge, the Parent and its Subsidiaries (including the Issuer) during such preceding fiscal year have kept, observed, performed and fulfilled each and every such covenant and no Default occurred during such year and at the date of such certificate there is no Default that has occurred and is continuing or, if such signers do know of such Default, the certificate shall specify such Default and what action, if any, the Parent is taking or proposes to take with respect thereto.
(b) The Parent shall deliver to the Trustee within 30 days after the Parent becomes aware (unless such Default has been cured before the end of the 30-day period) of the occurrence of any Default an Officer’s Certificate specifying the Default and what action, if any, the Parent is taking or proposes to take with respect thereto.
SECTION 10.5. Waiver of Stay, Extension or Usury Laws. Each of the Issuer and the Guarantor covenants (to the extent permitted by applicable law) that it shall not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or other law that would prohibit or forgive the Issuer or the Guarantor from paying all or any portion of the principal of and/or interest on the Notes or the Guaranty of the Guarantor as contemplated herein, wherever enacted, now or at any time hereafter in force, or which may affect the covenants or the performance of this Indenture, and (to the extent permitted by applicable law) each hereby expressly waives all benefit or advantage of any such law, and covenants that it shall not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.”
(c) The following shall be added to the Base Indenture as Sections 10.6 through 10.8:
“SECTION 10.6. Limitation on Indebtedness.
(a) The Parent shall not, and shall not permit any of its Subsidiaries (including the Issuer) to, Incur any Indebtedness (including Acquired Indebtedness) if, immediately after giving effect to the Incurrence of such additional Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Parent and its Subsidiaries on a consolidated basis is greater than 60% of the Parent’s Adjusted Total Assets; provided, however, that such limitation on Indebtedness shall not apply to (a) the Guaranty, (b) other Indebtedness existing on the Closing Date and (c) guarantees of Indebtedness Incurred by any Subsidiary that is subordinated in right of payment to the Notes.
30
(b) The Parent shall not, and shall not permit any of its Subsidiaries (including the Issuer) to, Incur any Secured Indebtedness (including Acquired Indebtedness) if, immediately after giving effect to the Incurrence of such additional Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Secured Indebtedness of the Parent and its Subsidiaries (including the Issuer) on a consolidated basis is greater than 40% of the Parent’s Adjusted Total Assets.
(c) The Parent shall not, and shall not permit any of its Subsidiaries (including the Issuer) to, Incur any Indebtedness (including Acquired Indebtedness) if, immediately after giving effect to the Incurrence of such additional Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Parent and its Subsidiaries on a consolidated basis would be less than 1.5 to 1.0.
(d) Notwithstanding any other provision of this Section 10.6, the maximum amount of Indebtedness that the Parent or any of its Subsidiaries may Incur pursuant to this Section 10.6 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness, due solely to the result of fluctuations in the exchange rates of currencies.
(e) For purposes of determining any particular amount of Indebtedness under this Section 10.6, Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included.
For purposes of determining compliance with any U.S. dollar-denominated restriction on the incurrence of Indebtedness, the U.S. dollar-equivalent principal amount of Indebtedness denominated in a foreign currency shall be calculated based on the relevant currency exchange rate in effect on the date such Indebtedness was incurred, in the case of term debt, or first committed, in the case of revolving credit debt; provided, however, that if such Indebtedness is incurred to refinance other Indebtedness denominated in a foreign currency, and such refinancing would cause the applicable U.S. dollar denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of such refinancing, such U.S. dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing Indebtedness does not exceed the principal amount of such Indebtedness being refinanced, plus the amount of any reasonable premium (including reasonable tender premiums), defeasance costs and any reasonable fees and expenses incurred in connection with the issuance of such new Indebtedness. The principal amount of any Indebtedness incurred to refinance other Indebtedness, if incurred in a different currency from the Indebtedness being refinanced, shall be calculated based on the currency exchange rate applicable to the currencies in which such respective Indebtedness is denominated that is in effect on the date of such refinancing.
SECTION 10.7. Maintenance of Total Unencumbered Assets. The Parent and its Subsidiaries shall maintain Total Unencumbered Assets as of the end of each fiscal quarter of not less than 150% of the aggregate outstanding principal amount of the Unsecured Indebtedness of the Parent and its Subsidiaries on a consolidated basis as of the end of each fiscal quarter.
SECTION 10.8. Reports to Holders. (a) For so long as the Notes remain outstanding, the Parent shall file with the SEC all such documents, reports and other information as it is required to file with the SEC by Sections 13(a) or 15(d) under the Exchange Act; provided, however, that, if filing such documents by the Parent with the SEC is not permitted under the Exchange Act or if at any time the Parent is not subject to Sections 13 or 15(d) of the Exchange Act, the Parent shall, within 15 days after the time the Parent would be required to file such information with the SEC if it were subject to Sections 13 or 15(d) under the Exchange Act, provide to the Trustee such documents, reports or other material disclosures as it would have been required to file with the SEC by Sections 13 or 15(d) of the Exchange Act, upon written request supply copies of such documents and reports to any Holder and, at its option, shall post such documents and reports on the Parent’s public website or post such documents and reports on Intralinks or any comparable password protected online data system requiring user identification and a confidentiality agreement (a “Confidential Datasite”). If the Parent elects to furnish such reports and information via a Confidential Datasite, access to the Confidential Datasite shall be provided upon request to holders, beneficial owners of, and bona fide prospective investors in the Notes as well as securities analysts and
31
market makers. The Parent shall supply the Trustee and each Holder, without cost to the Trustee or such Holder, copies of such reports and other information. Delivery of such information, documents and reports to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice 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 Officer’s Certificates).
(b) So long as permitted by the SEC, at any time that the Parent holds directly any material assets (including Capital Stock) other than the Capital Stock of the Issuer and such other assets taken together would represent 5% or more of the Total Assets of the Parent and its Subsidiaries as of the latest quarterly financial statements, then the quarterly and annual financial information required by this Section 10.8 will include a reasonably detailed presentation, either in “Management’s Discussion and Analysis of Financial Condition and Results of Operations” or any other comparable section, of the financial condition and results of operations of the Issuer and its Subsidiaries separate from the financial condition and results of operations of such other material assets of the Parent.
(c) The Parent shall also, within a reasonably prompt period of time following the disclosure of the annual and quarterly information required above, conduct a conference call with respect to such information and results of operations for the relevant reporting period. No fewer than three Business Days prior to (i) the disclosure of the annual, quarterly and periodic information required above and (ii) the date of the conference call required to be held in accordance with the preceding sentence, the Parent shall issue a press release to the appropriate internationally recognized wire services announcing the date that such information will be available and the time and date of such conference call.
(d) Notwithstanding anything herein to the contrary, the Parent shall not be deemed to have failed to comply with any of its obligations under this Section 10.8 for purposes of Section 5.1(4) until 30 days after the date any report hereunder is due.”
ARTICLE 11
REDEMPTION
SECTION 11.01. Changes to Article 11 of the Base Indenture
(a) Sections 11.1 through 11.3 enumerated in Article 11 of the Base Indenture shall be deleted and replaced in their entirety by the following:
“SECTION 11.1. Notices to Trustee. The Notes may be redeemed, in whole, or from time to time in part, subject to the conditions and at the redemption prices set forth in Section 5 of the form of Notes set forth in Exhibit A hereto, which is hereby incorporated by reference and made a part of this Indenture, together with accrued and unpaid interest to, but not including, the Redemption Date. If the Issuer elects to redeem Notes pursuant to Section 5 of the Notes, it shall notify the Trustee in writing of the Redemption Date, the Redemption Price and the principal amount of Notes to be redeemed. The Issuer shall give notice of redemption to the Trustee at least 20 days but not more than 65 days before the Redemption Date (unless a shorter notice shall be agreed to by the Trustee in writing), together with such documentation and records as shall enable the Trustee to select the Notes to be redeemed.
SECTION 11.2. Applicability of Article. Redemption or purchase of Notes as permitted by Section 11.1 shall be made in accordance with this Article 11.
SECTION 11.3. Selection of Notes To Be Redeemed. If less than all of the Notes are to be redeemed at any time pursuant to Section 5 of the Notes, the Trustee shall select Notes for redemption by lot or by such method as the Trustee shall deem fair and appropriate, but in any case in accordance with the applicable procedures of the Depositary for Global Notes.
No Notes of a principal amount of $2,000 or less shall be redeemed in part.”
32
(b) Section 11.6 enumerated in Article 11 of the Base Indenture shall be deleted and replaced in its entirety by the following:
“SECTION 11.6. Deposit of Redemption Price. On or before 12:00 p.m. New York City time (or such later time as has been agreed to by the Paying Agent) on the Redemption Date, the Issuer shall deposit with the Paying Agent cash in U.S. Dollars sufficient to pay the Redemption Price plus accrued and unpaid interest, if any, of all Notes to be redeemed on that date. The Paying Agent shall promptly return to the Issuer any money deposited with the Paying Agent by the Issuer in excess of the amounts necessary to pay the Redemption Price of, and accrued and unpaid interest on, all Notes to be redeemed or purchased.
If the Issuer complies with the preceding paragraph, then, unless the Issuer defaults in the payment of such Redemption Price plus accrued interest, if any, interest on the Notes to be redeemed will cease to accrue on and after the applicable Redemption Date, whether or not such Notes are presented for payment.”
(c) The following shall be added to the Base Indenture as Section 11.8:
SECTION 11.8. Mandatory Redemption. The Issuer will not be required to make any mandatory redemption or sinking fund payments with respect to the Notes.”
ARTICLE 12
SINKING FUNDS
SECTION 12.01. Applicability of Article 12 of the Base Indenture
Article 12 (“Sinking Funds”) of the Base Indenture shall not be applicable to the Notes.
ARTICLE 13
DEFEASANCE
SECTION 13.01. Changes to Article 13 of the Base Indenture
Sections 13.1 through 13.7 enumerated in Article 13 of the Base Indenture shall be deleted and replaced in their entirety by the following:
“SECTION 13.1. Legal Defeasance and Covenant Defeasance. The Issuer may, at its option and at any time, elect to have either paragraph (b) or (c) below be applied to all outstanding Notes upon compliance with the conditions set forth in Section 13.2.
(a) Upon the Issuer’s exercise under Section 13.1(a) hereof of the option applicable to this Section 13.1(b), the Issuer and the Guarantor shall, subject to the satisfaction of the conditions set forth in Section 13.2, be deemed to have been discharged from their obligations with respect to all outstanding Notes and to have cured all then-existing Events of Default on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that the Issuer and the Guarantor shall be deemed to have paid and discharged the entire Indebtedness represented by the outstanding Notes and Guaranty, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 13.3 hereof and the other Sections of this Indenture referred to in (i) and (ii) below, and to have satisfied all its other obligations under such Notes and this Indenture and the Guarantor shall be deemed to have satisfied all of its obligations under the Guaranty and this Indenture (and the Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(i) the rights of Holders of outstanding Notes to receive, solely from the trust fund described in Section 13.3, and as more fully set forth in such Section 13.3, payments in respect of the principal of and interest on such Notes when such payments are due;
33
(ii) the Issuer’s obligations with respect to such Notes concerning issuing temporary Notes, registration of Notes, mutilated, destroyed, lost or stolen Notes and Section 10.2 hereof;
(iii) the rights, powers, trusts, duties and immunities of the Trustee, and the Issuer’s obligations in connection therewith; and
(iv) the provisions of this Article 13 applicable to Legal Defeasance.
Subject to compliance with this Article 13, the Issuer may exercise its option under this Section 13.1(b) notwithstanding the prior exercise of its option under Section 13.1(c).
(b) Upon the Issuer’s exercise under Section 13.1(a) hereof of the option applicable to this Section 13.1(c), the Issuer and the Guarantor shall, subject to the satisfaction of the conditions set forth in Section 13.2, be released from their respective obligations under the covenants contained in Sections 10.3 (other than with respect to the legal existence of the Issuer), 10.6 through 10.8 and clause (3) of Section 14.1(a) with respect to the outstanding Notes on and after the date the conditions set forth in Section 13.2 are satisfied (hereinafter, “Covenant Defeasance”), and the Notes shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) in connection with such covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Notes shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Notes, the Issuer and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision herein or in any other document and such omission to comply shall not constitute an Event of Default under Section 5.1, but, except as specified above, the remainder of this Indenture and such Notes shall be unaffected thereby. In addition, upon the Issuer’s exercise under paragraph (a) hereof of the option applicable to this paragraph (c), subject to the satisfaction of the conditions set forth in Section 13.2, clauses (3), (4), (5) and (6) of Section 5.1 shall not constitute Events of Default.
SECTION 13.2. Conditions to Legal Defeasance or Covenant Defeasance. The following shall be the conditions to the application of either Section 13.1(b) or 13.1(c) hereof to the outstanding Notes:
(1) the Issuer shall irrevocably deposit with the Trustee, in trust, for the benefit of the Holders, U.S. Legal Tender, U.S. Government Obligations or a combination thereof, in such amounts as will be sufficient (without reinvestment), in the opinion of a nationally recognized firm of independent public accountants selected by the Issuer, to pay the principal of and interest on the Notes on the stated date for payment or on the redemption date of the Notes;
(2) in the case of Legal Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States confirming that, subject to customary assumptions and exclusions:
| (a) | the Issuer has received from, or there has been published by the Internal Revenue Service, a ruling, or |
| (b) | since the date of this Indenture, there has been a change in the applicable U.S. Federal income tax law, |
in either case to the effect that, and based thereon this Opinion of Counsel shall confirm that, the Holders will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such Legal Defeasance and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
34
(3) in the case of Covenant Defeasance, the Issuer shall have delivered to the Trustee an Opinion of Counsel in the United States reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders will not recognize income, gain or loss for U.S. Federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no Default shall have occurred and be continuing on the date of such deposit (other than a Default resulting from the borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to other Indebtedness and, in each case, the granting of Liens on the deposited funds in connection therewith);
(5) the Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any other material agreement or instrument (other than this Indenture) to which the Parent or any of its Subsidiaries is a party or by which the Parent or any of its Subsidiaries is bound (other than any such Default or default relating to any Indebtedness being defeased from any borrowing of funds to be applied to such deposit and any similar and simultaneous deposit relating to such Indebtedness, and the granting of Liens on the deposited funds in connection therewith);
(6) the Issuer shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by them with the intent of preferring the Holders over any other creditors of the Issuer or with the intent of defeating, hindering, delaying or defrauding any other of their creditors or others; and
(7) the Issuer shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the conditions provided for in, in the case of the Officer’s Certificate, clauses (1) through (6), as applicable, and, in the case of the Opinion of Counsel, clauses (2) or (3), as applicable, and (5) of this Section 13.2 have been complied with.
SECTION 13.3. Application of Trust Money. Subject to Section 13.4, the Trustee or Paying Agent shall hold in trust all U.S. Legal Tender and U.S. Government Obligations deposited with it pursuant to this Article 13, and shall apply the deposited U.S. Legal Tender and the money from U.S. Government Obligations in accordance with this Indenture to the payment of the principal of and the interest on the Notes. The Trustee shall be under no obligation to invest said U.S. Legal Tender and U.S. Government Obligations, except as it may agree with the Issuer.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Legal Tender and U.S. Government Obligations deposited pursuant to Section 13.2 or the principal and interest received in respect thereof, other than any such tax, fee or other charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article 13 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon the Issuer’s request any U.S. Legal Tender and U.S. Government Obligations held by it as provided in Section 13.2 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect an equivalent Legal Defeasance or Covenant Defeasance.
SECTION 13.4. Repayment to the Issuer. Subject to applicable escheatment laws, the Trustee and the Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal or interest that remains unclaimed for two years. After payment to the Issuer, Holders entitled to such money shall look to the Issuer for payment as general creditors unless an applicable law designates another Person and all liability of the Trustee or such Paying Agent with respect to such trust money shall thereupon cease.
SECTION 13.5. Reinstatement. If the Trustee or Paying Agent is unable to apply any U.S. Legal Tender and U.S. Government Obligations in accordance with this Article 13 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise
35
prohibiting such application, the Issuer’s obligations under this Indenture, and the Notes and the Guaranty shall be revived and reinstated as though no deposit had occurred pursuant to this Article 13 until such time as the Trustee or Paying Agent is permitted to apply all such U.S. Legal Tender and U.S. Government Obligations in accordance with this Article 13; provided that if the Issuer has made any payment of interest on, or principal of, any Notes because of the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of such Notes to receive such payment from the U.S. Legal Tender and U.S. Government Obligations held by the Trustee or Paying Agent.”
ARTICLE 14
SUCCESSOR CORPORATION
SECTION 14.01. Addition of Article 14 to the Base Indenture
The following shall be added to the Base Indenture as Article 14:
ARTICLE 14
SUCCESSOR CORPORATION
“SECTION 14.1. Consolidation, Merger and Sale of Assets.
The Parent shall not consolidate with or merge with or into, or sell, convey, transfer or otherwise dispose of all or substantially all of its and its Subsidiaries’ (taken as a whole) property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions) to, any Person or permit any Person to merge with or into the Parent unless:
(1) the Parent shall be the continuing Person, or the Person (if other than the Parent ) formed by such consolidation or into which the Parent is merged or that acquired such property and assets of the Parent shall be a corporation, limited liability company, partnership (including a limited partnership) or trust organized and validly existing under the laws of the United States of America or any state or jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of the obligations of the Parent on its Guaranty and under this Indenture (provided that in the case of a limited liability company, partnership (including a limited partnership) or trust, solely to the extent required by the 2024 Notes, there shall also be a corporation organized and validly existing under the laws of the United States of America or any state or jurisdiction thereof which shall expressly jointly with such limited liability company, partnership (including a limited partnership) or trust, assume, by a supplemental indenture, executed and delivered to the Trustee, all of the obligations of the Parent on its Guaranty and under this Indenture);
(2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction and any related financing transactions as if the same had occurred at the beginning of the applicable Four Quarter Period, on a pro forma basis the Issuer, or any Person becoming the successor obligor of the Notes, as the case may be, (a) could Incur at least $1.00 of Indebtedness under paragraphs (a) and (c) of Section 10.6 or (b) could incur at least $1.00 of Indebtedness under paragraph (a) of Section 10.6 and the Interest Coverage Ratio would improve; provided, however, that this clause (3) shall not apply to a consolidation or merger with or into a Wholly Owned Subsidiary; and
(4) the Parent delivers to the Trustee an Officer’s Certificate (attaching the arithmetic computations to demonstrate compliance with clause (3) above) and an Opinion of Counsel, in each case stating that such consolidation, merger or transfer and such supplemental indenture complies with this Section 14.1 and that all conditions precedent provided for herein relating to such transaction have been
36
complied with and, with respect to the Opinion of Counsel, that the supplemental indenture constitutes a valid and binding obligation enforceable against the Parent, or the Person (if other than the Parent) formed by such consolidation or into which the Parent is merged or that acquired all or substantially all of the Parent’s and its Subsidiaries’ property and assets;
provided, however, that clause (3) above does not apply if, in the good faith determination of the Board of Directors of the Parent, whose determination shall be evidenced by a Board Resolution, the principal purpose of such transaction is to change the state of domicile of the Parent; provided further, however, that any such transaction shall not have as one of its purposes the evasion of the foregoing limitations.
(b) The Parent shall not permit the Issuer to consolidate with or merge with or into, or convey or transfer, in one transaction or a series of transactions, all or substantially all of its assets to any Person, unless:
(1) (i) the resulting, surviving or transferee Person (if not the Issuer) shall be a Person organized and existing under the laws of the jurisdiction under which the Issuer was organized or under the laws of the United States of America, or any State thereof or the District of Columbia, and (ii) such Person shall expressly assume, by a supplemental indenture, all the obligations of the Issuer under the Notes;
(2) immediately after giving effect to such transaction or transactions on a pro forma basis (and treating any Indebtedness which becomes an obligation of the resulting, surviving or transferee Person as a result of such transaction as having been issued by such Person at the time of such transaction), no Default shall have occurred and be continuing; and
(3) the Parent delivers to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture, if any, complies with this Indenture and, with respect to the Opinion of Counsel, that the supplemental indenture constitutes a valid and binding obligation enforceable against the Issuer, the Parent and the surviving Persons.
(c) Upon any such consolidation, combination or merger of the Issuer or the Parent, or any such sale, conveyance, transfer or other disposition of all or substantially all of the assets of the Issuer in accordance with this Section 14.1, in which the Issuer or the Parent is not the continuing obligor under the Notes or its Guaranty, the surviving entity formed by such consolidation or into which the Issuer or the Parent is merged or the entity to which the sale, conveyance, transfer or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Issuer or the Parent under this Indenture and, the Notes and the Guaranty with the same effect as if such surviving entity had been named therein as the Issuer or the Parent and the Issuer or the Parent, as the case may be, shall be released from the obligation to pay the principal of and interest on the Notes or in respect of its Guaranty, as the case may be, and all of the Issuer’s or the Parent’s other obligations and covenants under the Notes, this Indenture and its Guaranty, if applicable.
(d) Notwithstanding any of the foregoing and for the avoidance of doubt, the lease of all or substantially all of the assets of the Parent and its Subsidiaries shall not be subject to this Section 14.1.”
ARTICLE 15
ADDITIONAL TERMS OF THIS SUPPLEMENTAL INDENTURE
SECTION 15.01. Interpretation of Base and Supplemental Indenture.
The Base Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified and confirmed, and the Base Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this Supplemental Indenture supersede any similar provisions included in the Base Indenture unless not permitted by law.
37
SECTION 15.02. Successors and Assigns.
All agreements of the Issuer and the Parent in this Supplemental Indenture, the Notes and the Guaranty shall bind their respective successors. All agreements of the Trustee in this Supplemental Indenture shall bind its successor.
SECTION 15.03. Severability.
To the extent permitted by applicable law, in case any one or more of the provisions in this Supplemental Indenture, in the Notes or in the Guaranty shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
SECTION 15.04. Governing Law; Waiver of Jury Trial.
This Supplemental Indenture, the Notes and the Guaranty will be governed by and construed in accordance with the laws of the State of New York. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Supplemental Indenture, the Notes, the Guaranty or the transaction contemplated hereby.
SECTION 15.05. Effect of Headings.
The Article and Section headings in this Supplemental Indenture are for convenience only and shall not be deemed to alter or affect the meaning or interpretation of any provisions hereof.
SECTION 15.06. Duplicate Originals.
All parties may sign any number of copies of this Supplemental Indenture. Each signed copy or counterpart shall be an original, but all of them together shall represent the same agreement. Delivery of an executed counterpart of a signature page to this Supplemental Indenture by facsimile, .pdf transmission, email or other electronic means shall be effective as delivery of a manually executed counterpart of this Supplemental Indenture. This Supplemental Indenture (or to any document delivered in connection with this Supplemental Indenture) shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf of the party by means of (i) any electronic signature permitted by the federal Electronic Signatures in Global and National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law, including relevant provisions of the Uniform Commercial Code/UCC (collectively, “Signature Law”); (ii) an original manual signature; or (iii) a faxed, scanned, or photocopied manual signature. Each electronic signature or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon, and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature, of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity thereof. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under the UCC or other Signature Law due to the character or intended character of the writings.
38
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed, all as of the date first above written.
| SABRA HEALTH CARE LIMITED PARTNERSHIP, as the Issuer
By: Sabra Health Care REIT, Inc., its general partner | ||||
| By: | /s/ Richard K. Matros | |||
| Name: | Richard K. Matros | |||
| Title: | President and Chief Executive Officer | |||
| SABRA HEALTH CARE REIT, INC., as Parent and Guarantor | ||||
| By: | /s/ Richard K. Matros | |||
| Name: | Richard K. Matros | |||
| Title: | President and Chief Executive Officer | |||
[Signature page to First Supplemental Indenture]
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||||||
| By: | /s/ Linda Lopez | |||||
| Name: | Linda Lopez | |||||
| Title: | Assistant Vice President | |||||
[Signature page to First Supplemental Indenture]
Form of Initial Note
(FACE OF NOTE)
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1
SABRA HEALTH CARE LIMITED PARTNERSHIP
3.200% Senior Notes due 2031
CUSIP No.
No. [ ] $[ ]
SABRA HEALTH CARE LIMITED PARTNERSHIP, a Delaware limited partnership (the “Issuer”), for value received promise to pay to Cede & Co., or its registered assigns, the principal sum of [ ] DOLLARS [or such other amount as is provided in a schedule attached hereto]1 on December 1, 2031.
Interest Payment Dates: June 1 and December 1, commencing June 1, 2022.
Record Dates: May 15 and November 15.
Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.
[Signature page follows]
| 1 | This language should be included only if the Note is issued in global form. |
A-2
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officer.
Dated:
| SABRA HEALTH CARE LIMITED PARTNERSHIP, as the Issuer | ||
| By: | Sabra Health Care REIT, Inc., its General Partner | |
| By: |
| |
| Name: | ||
| Title: | ||
A-3
[FORM OF] TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the 3.200% Senior Notes due 2031 described in the within-mentioned Indenture.
Dated:
| WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee | ||
| By: |
| |
| Authorized Signatory | ||
A-4
(Reverse of Note)
3.200% Senior Notes due 2031
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
SECTION 1. Interest. Sabra Health Care Limited Partnership, a Delaware limited partnership (the “Issuer”), promises to pay interest on the principal amount of this Note at 3.20% per annum from September 30, 2021, until maturity. The Issuer will pay interest semi-annually on June 1 and December 1 of each year (each an “Interest Payment Date”), commencing June 1, 2022. Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from September 30, 2021. The Issuer shall pay interest on overdue principal and premium, if any, from time to time on demand to the extent lawful at the interest rate applicable to the Notes; it shall pay interest on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the same rate to the extent lawful. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. If any Interest Payment Date, maturity date or Redemption Date is not a Business Day, the required payment will be made on the next succeeding day that is a Business Day, without any interest or other payment in respect of the payment subject to delay, with the same force and effect as if made on such Interest Payment Date, maturity date or Redemption Date, as the case may be.
SECTION 2. Method of Payment. The Issuer will pay interest on the Notes to the Persons who are registered Holders at the close of business on the May 15 or November 15 immediately preceding the Interest Payment Date, even if such Notes are canceled after such record date and on or before such Interest Payment Date, except as provided in Section 3.7 of the Indenture with respect to defaulted interest. The Notes will be issued in denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Issuer shall pay principal, premium, if any, and interest on the Notes in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Principal, premium, if any, and interest on the Notes will be payable at the office or agency of the Issuer maintained for such purpose except that, at the option of the Issuer, the payment of interest may be made by check mailed to the Holders at their respective addresses set forth in the register of Holders of Notes. Until otherwise designated by the Issuer, the Issuer’s office or agency in New York will be the office of the Trustee maintained for such purpose.
SECTION 3. Paying Agent and Security Registrar. Initially, Wells Fargo Bank, National Association, the Trustee under the Indenture, will act as Paying Agent and Security Registrar. The Issuer may change any Paying Agent or Security Registrar without notice to any Holder. Except as provided in the Indenture, the Issuer or any of its Subsidiaries may act in any such capacity.
SECTION 4. Indenture. The Issuer issued the Notes under an Indenture, dated as of September 30, 2021, between the Issuer, Sabra Health Care REIT, Inc., a Maryland corporation (the “Parent”), and Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, as trustee (the “Trustee”) (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of September 30, 2021 (the “Supplemental Indenture,” and, collectively, the “Indenture,” which terms shall have the meanings assigned to it in such instrument), by and among the Issuer, the Parent and the Trustee. Subject to the terms of the Indenture, the Issuer shall be entitled to issue Additional Notes. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code §§ 77aaa-77bbbb) (the “Trust Indenture Act”). The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of such terms. To the extent any provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
SECTION 5. Optional Redemption. The Notes will be redeemable at the option of the Issuer, in whole or in part at any time and from time to time, upon not less than 15 days’ nor more than 60 days’ notice. If the Notes are redeemed prior to the Par Call Date, the redemption price will be equal to the greater of:
(1) 100% of the principal amount of the Notes being redeemed; and
A-5
(2) the sum of the present values of the remaining scheduled payments of principal of and interest on the Notes being redeemed that would be due if the Notes matured on the Par Call Date (exclusive of interest accrued to the applicable redemption date) discounted to such redemption date on a semiannual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate plus 30 basis points;
plus, in each case of (1) and (2) above, accrued and unpaid interest thereon to, but not including, the applicable redemption date.
If the Notes are redeemed on or after the Par Call Date, the redemption price will be equal to 100% of the principal amount of the Notes being redeemed, plus accrued and unpaid interest thereon to, but not including, the applicable redemption date.
SECTION 6. Notice of Redemption. Notice of redemption will be delivered electronically or mailed by first-class mail or as otherwise provided in accordance with the procedures of the Depository at least 15 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at its registered address, except that redemption notices may be delivered electronically or mailed more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Notes or a satisfaction or discharge of the Indenture. No Notes of $2,000 or less shall be redeemed in part. On and after the Redemption Date interest ceases to accrue on Notes or portions thereof called for redemption.
SECTION 7. Mandatory Redemption. The Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the Notes.
SECTION 8. Denominations, Transfer, Exchange. The Notes are in fully registered form, without coupons, in denominations of $2,000 of principal amount and integral multiples of $1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Security Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require a Holder to pay any taxes and fees required by law or permitted by the Indenture. The Issuer and the Security Registrar are not required to transfer or exchange any Note selected for redemption. Also, the Issuer and the Security Registrar are not required to transfer or exchange any Notes for a period of 15 days before a selection of Notes to be redeemed.
SECTION 9. Persons Deemed Owners. The registered Holder of a Note may be treated as its owner for all purposes.
SECTION 10. Amendment, Supplement and Waiver. Subject to certain exceptions, the Indenture and the Notes may be amended or supplemented with the written consent of the Holders of at least a majority in aggregate principal amount of the Notes then outstanding, and any existing Default or compliance with any provision may be waived with the consent of the Holders of a majority in aggregate principal amount of the Notes then outstanding. Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture, the Notes and the Guaranty as provided in the Indenture.
SECTION 11. Defaults and Remedies. If an Event of Default occurs and is continuing (other than as specified in clauses (7) and (8) of Section 5.1 of the Indenture that occurs with respect to the Parent or the Issuer), the Trustee or the Holders of at least 25% in principal amount of the then outstanding Notes may declare the principal of, premium, if any, and accrued interest on the Notes to be due and payable immediately in accordance with the provisions of Section 5.2 of the Indenture. Notwithstanding the foregoing, in the case of an Event of Default arising from clause (7) or (8) of Section 5.1 of the Indenture, with respect to the Parent or the Issuer, all outstanding Notes will become due and payable without further action or notice. Holders of the Notes may not enforce the Indenture or the Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of the Notes notice of any continuing Default if it determines that withholding notice is in their interest in accordance with Section 6.2 of the Indenture. The Holders of a majority in aggregate principal amount of the Notes then outstanding by notice to the Trustee may on behalf of the Holders of all of the Notes waive any existing Default and its consequences under the Indenture except a Default in the payment of principal of, or interest on, any Note as specified in Section 5.1(1) and (2) of the Indenture.
A-6
SECTION 12. Restrictive Covenants. The Indenture contains certain covenants as set forth in Article 10 of the Indenture.
SECTION 13. No Recourse Against Others. No recourse for the payment of the principal of, premium, if any, or interest on any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Parent or the Issuer in the Indenture, or in any of the Notes or Guaranty or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, stockholder, officer, director, employee or controlling person of the Parent or the Issuer or of any successor Person thereof. Each Holder, by accepting the Notes, waives and releases all such liability. Such waiver and release are part of the consideration for issuance of the Notes.
SECTION 14. [Reserved].
SECTION 15. Guaranty. This Note will be entitled to the benefits of the Guaranty of the Parent made for the benefit of the Holders. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and obligations thereunder of the Parent as Guarantor, the Trustee and the Holders.
SECTION 16. Authentication. This Note shall not be valid until authenticated by the manual signature of the Trustee or an authenticating agent.
SECTION 17. Abbreviations. Customary abbreviations may be used in the name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entirety), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
SECTION 18. CUSIP and ISIN Numbers. Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP and ISIN numbers to be printed on the Notes and the Trustee may use CUSIP or ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
SECTION 19. Governing Law. This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture.
A-7
ASSIGNMENT FORM
| I or we assign and transfer this Note to | ||||
|
| ||||
|
| ||||
| (Print or type name, address and zip code of assignee or transferee) | ||||
|
| ||||
| (Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him. | ||||
| Dated: | Signed: |
| ||||
| (Sign exactly as name appears on the other side of this Note) | ||||||
| Signature Guarantee: |
| |||||
| Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor program reasonably acceptable to the Trustee) | ||||||
A-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE1
The following exchanges of a part of this Global Note for an interest in another Global Note or for a Physical Note, or exchanges of a part of another Global Note or Physical Note for an interest in this Global Note, have been made:
| Date of Exchange |
Amount of decrease in Principal Amount of The Global Note |
Amount of increase in Principal Amount of this Global Note |
Principal Amount of this Global Note following such decrease (or increase) |
Signature of authorized officer of Trustee of Note custodian | ||||
| 1 | This schedule should be included only if the Note is issued in global form. |
A-9
GUARANTY
For value received, the undersigned (including any successor Person under the Indenture (as defined below)) hereby unconditionally guarantees to the extent set forth in the Indenture to the Holder of this Note the payment of principal, premium, if any, and interest on this Note in the amounts and at the times when due and interest on the overdue principal, premium, if any, and interest, if any, of this Note when due, if lawful, and, to the extent permitted by law, the payment or performance of all other obligations of the Issuer under the Indenture or the Notes, to the Holder of this Note and the Trustee, all in accordance with and subject to the terms and limitations of this Note, the Indenture, including Article 8 thereof, and this Guaranty. This Guaranty will become effective in accordance with Article 8 of the Indenture and its terms shall be evidenced therein. The validity and enforceability of this Guaranty shall not be affected by the fact that it is not affixed to any particular Note.
Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Indenture dated as of September 30, 2021, between Sabra Health Care Limited Partnership, a Delaware limited partnership (the “Issuer”), Sabra Health Care REIT, Inc., a Maryland corporation (the “Parent”), and Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America, as trustee (the “Trustee”) (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of September 30, 2021, among the Issuer, the Parent and the Trustee (the “Supplemental Indenture,” and collectively, the “Indenture,” which terms shall have the meanings assigned to it in such instrument).
The obligations of the undersigned to the Holders of Notes and to the Trustee pursuant to this Guaranty and the Indenture are expressly set forth in Article 8 of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guaranty and all of the other provisions of the Indenture to which this Guaranty relates.
No director, officer, employee, incorporator, stockholder or controlling person or any successor Person thereof of the Guarantor, as such, shall have any liability for any obligations of the Guarantor under this Guaranty or the Indenture or for any claim based on, in respect of, or by reason of, such obligation or its creation.
This Guaranty shall be governed by, and construed in accordance with, the laws of the State of New York.
This Guaranty is subject to release upon the terms set forth in the Indenture.
B-1
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly executed on this 30th day of September, 2021.
| SABRA HEALTH CARE REIT, INC., as Guarantor | ||||
| By: |
| |||
| Name: | Richard K. Matros | |||
| Title: | President and Chief Executive Officer | |||
B-2
Exhibit 5.1
[Venable LLP Letterhead]
September 30, 2021
Sabra Health Care REIT, Inc.
18500 Von Karman Avenue, Suite 550
Irvine, CA 92612
| Re: | Registration of Guarantee of 3.200% Senior Notes due 2031 of Sabra Health Care Limited Partnership |
Ladies and Gentlemen:
We have served as Maryland counsel to Sabra Health Care REIT, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration by the Company of a guaranty of up to $800,000,000 in aggregate principal amount of 3.200% Senior Notes due 2031 (the “Notes”), issued by Sabra Health Care Limited Partnership, a Delaware limited partnership (the “Issuer”), covered by the Registration Statement on Form S-3 (File No. 333-235449) and all amendments thereto (the “Registration Statement”), filed by the Issuer and the Company, as co-registrants, with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):
1. The Registration Statement and the Prospectus included therein in the form in which it was transmitted to the Commission under the 1933 Act;
2. The charter of the Company, certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;
4. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
5. The Indenture, dated as of September 30, 2021 (the “Base Indenture”), among the Issuer, the Company and Wells Fargo Bank, National Association (“Wells Fargo”);
Sabra Health Care REIT, Inc.
September 30, 2021
Page 2
6. The First Supplemental Indenture, dated as of the date hereof (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), relating to the Notes, among the Issuer, the Company and Wells Fargo;
7. The Global Notes, dated as of the date hereof (the “Global Notes”), registered in the name of Cede & Co., as nominee of The Depository Trust Company, representing in the aggregate, the Notes;
8. The Notations of Guaranty, included as part of the Global Notes, dated as of the date hereof (the “Guaranties”), made by the Company to the Underwriters;
9. Resolutions of the Board of Directors of the Company (the “Resolutions”) relating to, among other things, the execution and delivery by the Company of the Base Indenture, the First Supplemental Indenture and the Guaranty (collectively, the “Note Documents”);
10. A certificate executed by an officer of the Company, dated as of the date hereof; and
11. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
4. All Documents submitted to us as originals are authentic. The form and content of all 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. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied
Sabra Health Care REIT, Inc.
September 30, 2021
Page 3
upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
The phrase “known to us” is limited to the actual knowledge, without independent inquiry, of the lawyers at our firm who have performed legal services in connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and validly existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The execution, delivery and performance of its obligations under the Note Documents have been duly authorized by all necessary corporate action on the part of the Company.
3. The Note Documents have been duly executed and, so far as is known to us, delivered by the Company.
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to the applicability or effect of federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. We note that the Indenture and the Guaranty provide that they shall be governed by the laws of the State of New York. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K, being filed on the date hereof, relating to
Sabra Health Care REIT, Inc.
September 30, 2021
Page 4
the Notes (the “Current Report”). We hereby consent to the filing of this opinion as an exhibit to the Current Report, the incorporation by reference of this opinion as an exhibit to the Registration Statement, and to the use of the name of our firm under the heading “Legal Matters” in the prospectus supplement, dated September 21, 2021, filed with the Commission on September 22, 2021. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
/s/ Venable LLP
| Exhibit 5.2
| ||||
| [O’Melveny & Myers LLP Letterhead] |
| O’Melveny & Myers LLP 610 Newport
Center Drive |
T: +1 949 823 6900 F: +1 949 823 6994 omm.com |
September 30, 2021
Sabra Health Care Limited Partnership
18500 Von Karman Avenue, Suite 550
Irvine, California 92612
| Re: | Registration of 3.200% Senior Notes due 2031 of |
Sabra Health Care Limited Partnership
Ladies and Gentlemen:
We have acted as counsel to Sabra Health Care Limited Partnership, a Delaware limited partnership (the “Issuer”), a wholly owned subsidiary of Sabra Health Care REIT, Inc., a Maryland corporation (“Sabra”), in connection with the issuance and sale of $800,000,000 aggregate principal amount of the Issuer’s 3.200% Senior Notes due 2031 (the “Notes”), which have been registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to a registration statement on Form S-3 (File No. 333-235449), filed with the Securities and Exchange Commission (the “Commission”) on December 11, 2019 (the “Registration Statement”), which became effective upon filing with the Commission, with the Notes to be guaranteed (the “Guaranties”) by Sabra.
In our capacity as counsel to the Issuer, we have examined originals or copies of (i) the Registration Statement, (ii) an indenture, dated as of September 30, 2021, among the Issuer, Sabra, and Wells Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture relating to the Notes, dated as of September 30, 2021, among the Issuer, Sabra and the Trustee (as so supplemented, the “Indenture”), (iii) the underwriting agreement, dated September 21, 2021, as amended by Amendment No. 1, dated September 30, 2021 (as amended, the “Underwriting Agreement”), by and among the Issuer, Sabra, and Wells Fargo Securities, LLC, BofA Securities, Inc., Credit Agricole Securities (USA) Inc. and J.P. Morgan Securities LLC, as representatives of the several underwriters named therein, and (iv) such other corporate and other records and documents we considered appropriate. We have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies.
On the basis of such examination, our reliance upon the assumptions in this opinion and our consideration of those questions of law we considered relevant, and subject to the limitations and qualifications in this opinion, we are of the opinion that:
| 1. | The Notes have been duly authorized by all necessary limited partnership action on the part of the Issuer. |
| 2. | When authenticated, executed, issued and delivered in accordance with the Indenture, and upon payment for and delivery of the Notes in accordance with the terms of the Underwriting Agreement, the Notes will be the legally valid and binding obligations of the Issuer, enforceable against the Issuer in accordance with their terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law. |
| 3. | When the Guaranties are executed and the Notes are executed, issued, authenticated and delivered, all in accordance with the Indenture and upon payment for and delivery of the Notes in accordance with the terms of the Underwriting Agreement, the Guaranties will be the legally valid and binding obligation of Sabra, enforceable against Sabra in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law. |
With respect to the foregoing opinions, we have assumed as true the matters set forth in the opinion of Venable LLP, dated the date hereof, a copy of which has been delivered to you by Venable LLP.
The law governed by this opinion is limited to the present federal law of the United States, the present laws of the State of New York, the present Revised Uniform Limited Partnership Act of the State of Delaware. We express no opinion as to the laws of any other jurisdiction.
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K promulgated under the Securities Act, or the rules and regulations of the Commission promulgated thereunder, and no opinion is expressed herein as to any matter pertaining to the contents of the Registration Statement, the prospectus included in the Registration Statement or any prospectus supplement, other than as expressly stated herein with respect to the Notes and the Guaranties.
We hereby consent to the use of this opinion as an exhibit to the Current Report on Form 8-K of Sabra Health Care REIT, Inc., being filed on the date hereof, and incorporated by reference into the Registration Statement. We hereby consent to the reference to our firm under the caption “Legal Matters” in the prospectus supplement, dated September 21, 2021, filed with the Commission on September 22, 2021. In giving this consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations promulgated thereunder.
Respectfully submitted,
/s/ O’Melveny & Myers LLP
2