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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
December 21, 2023
DIVERSIFIED HEALTHCARE TRUST
(Exact Name of Registrant as Specified in
Its Charter)
(State or Other Jurisdiction of Incorporation)
001-15319 |
|
04-3445278 |
(Commission File Number) |
|
(IRS Employer Identification No.) |
Two Newton Place, 255 Washington Street, Suite 300, Newton, Massachusetts
02458-1634
(Address of Principal Executive Offices) (Zip Code)
617-796-8350
(Registrant’s Telephone Number, Including
Area Code)
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 |
Common
Shares of Beneficial Interest |
|
DHC |
|
The
Nasdaq Stock Market LLC |
5.625%
Senior Notes due 2042 |
|
DHCNI |
|
The
Nasdaq Stock Market LLC |
6.25%
Senior Notes due 2046 |
|
DHCNL |
|
The
Nasdaq Stock Market LLC |
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. ¨
In this Current Report on Form 8-K, the terms “we”,
“us”, and “our” refer to Diversified Healthcare Trust.
Item 1.01. Entry Into a Material Definitive Agreement.
Item 1.02. Termination of a Material Definitive Agreement.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation
under an Off-Balance Sheet Arrangement of a Registrant.
Senior Secured Notes Transaction
On
December 21, 2023, we completed a private offering of $940,534,000 in aggregate principal amount at maturity of senior secured notes due
2026, or the Notes. The net proceeds from the offering were approximately $732 million, after initial purchaser discounts and estimated
offering costs. We used approximately $450 million of these net proceeds to repay in full our secured credit facility and will use approximately
$250 million of these net proceeds to redeem in full our outstanding 4.750% senior notes due 2024, each as further described below, and
will use the excess proceeds to pay fees and expenses associated with such repayment and redemption and for general business purposes.
After purchasing the Notes from us, the initial
purchasers offered and sold the Notes only to persons reasonably believed
to be qualified institutional buyers pursuant to Rule 144A under the Securities Act
of 1933, as amended, or the Securities Act, and outside the United States to non-United States persons in compliance with Regulation S
under the Securities Act. The Notes have not been registered under the Securities Act or under any state securities law and may not be
offered or sold in the United States absent registration or an applicable exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act and applicable state securities laws.
The Notes and
the guarantees thereof were issued under an indenture, dated as of December 21, 2023, or the Indenture, among us, the Collateral
Guarantors and the Non-Collateral Guarantors (each as defined below), and U.S. Bank Trust Company,
National Association, or U.S. Bank, as trustee and collateral agent.
No cash interest
will accrue on the Notes prior to maturity, unless we elect to exercise the extension option described below. The Notes will have an initial
accreted value of $797.42 per $1,000 principal amount at maturity, which was the offering price of the Notes to investors in the offering.
The accreted value of each Note will increase from the date of issuance until January 15, 2026, the maturity date of the Notes, at a rate
of 11.25% per annum compounded semiannually on January 15 and July 15 of each year, such that the accreted value will equal the principal
amount at maturity of each Note on that date.
We have a
one-time option to extend the maturity date of the Notes by one year, to January 15, 2027, without the consent of the noteholders, subject
to the satisfaction of certain conditions and payment of an extension fee. If we exercise this option, interest payments will be due semiannually
during the extension period at an initial interest rate of 11.25% with increases of 50 basis points every 90 days that the Notes remain
outstanding.
The Notes
are fully and unconditionally guaranteed, on a joint, several and senior secured basis, by certain of our subsidiaries that own 95 properties
with an estimated fair value of approximately $1.57 billion, or the Collateral Guarantors, and on a joint, several and unsecured basis,
by all our subsidiaries that currently guarantee our 9.750% senior notes due 2025 and our 4.375% senior notes due 2031 that do not own
the collateral properties, or the Non-Collateral Guarantors. The Notes and the guarantees provided by the Collateral Guarantors will be
secured by a first-priority lien and security interest on each of the collateral properties and 100% of the equity interests in each of
the Collateral Guarantors.
The Notes are subject to certain restrictive financial
and operating covenants, including covenants that restrict our ability to incur debts, including debts secured by mortgages on our properties,
in excess of calculated amounts and require us to maintain certain financial ratios.
Affiliates of certain of the initial purchasers
are lenders under our secured credit facility and therefore may receive a portion of the net proceeds from the offering. Additionally,
certain of the initial purchasers or their respective affiliates hold a portion of our 4.750% senior notes due 2024 and therefore may
receive a portion of the net proceeds from the offering.
The foregoing description of the Notes is
not complete and is subject to and qualified in its entirety by reference to the copy of the Indenture attached hereto as Exhibit
4.1, which is incorporated by reference herein.
Repayment and Termination of Secured Credit Facility
In connection with the closing of the offering
of the Notes, on December 21, 2023, we repaid the $450 million outstanding under our secured credit facility with Wells
Fargo Bank, National Association, as administrative agent and a lender, and a syndicate of other lenders, and then terminated the
agreement governing that facility in accordance with its terms and without penalty.
The foregoing description of the agreement governing
our terminated credit facility is not complete and is subject to and qualified in its entirety by
reference to the conformed copy of the credit agreement, as amended, that was previously filed as Exhibit 10.1 to
our Current Report on Form 8-K dated February 14, 2023.
2024 Notes Redemption
Following
the closing of the offering of the Notes, on December 21, 2023, we delivered a notice of redemption to U.S. Bank, as successor trustee
to U.S. Bank National Association, with respect to all of our outstanding 4.750% senior notes due 2024, for
a redemption price equal to the principal amount of $250 million, plus accrued and unpaid interest to, but excluding the date of redemption.
The redemption date is January 20, 2024 and payment of the redemption price is expected to occur on or about January 22, 2024. This Current
Report on Form 8-K does not constitute notices of redemption with respect to our 4.750% senior notes due 2024.
Item 8.01. Other Events.
On December
20, 2023, we and ABP Trust agreed that our right to purchase common shares of AlerisLife Inc. pursuant to the Consent and Amendment Agreement,
dated as of February 2, 2023, among us and our applicable subsidiaries, and ABP Trust, its applicable subsidiaries and Adam D. Portnoy,
at any time prior to December 31, 2023 and otherwise on the terms specified in the Consent and Amendment Agreement, be extended to March
31, 2024.
The foregoing description of the Consent and Amendment
Agreement is not complete and is subject to and qualified in its entirety by reference to the copy
thereof that was previously filed as Exhibit 99.1 to our Current Report on Form 8-K dated
February 2, 2023.
Item 9.01. Financial Statements and 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.
|
DIVERSIFIED HEALTHCARE TRUST |
|
|
|
By: |
/s/ Matthew C. Brown |
|
Name: |
Matthew C. Brown |
|
Title: |
Chief Financial Officer and Treasurer |
Dated: December 22, 2023
Exhibit 4.1
EXECUTION VERSION
DIVERSIFIED HEALTHCARE TRUST
THE SUBSIDIARY GUARANTORS
NAMED HEREIN
and
U.S. BANK TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee and Collateral
Agent
Dated as of December 21,
2023
$940,534,000 Senior Secured Notes due 2026
TABLE OF CONTENTS
Page
ARTICLE
One
Definitions and Other Provisions of General Application |
1 |
|
|
Section 1.01. Definitions |
1 |
Section 1.02. Compliance Certificates and Opinions |
20 |
Section 1.03. Form of Documents Delivered to Trustee |
21 |
Section 1.04. Acts of Holders; Record Dates |
21 |
Section 1.05. Notices, Etc., to Trustee and Company |
23 |
Section 1.06. Notice to Holders; Waiver |
23 |
Section 1.07. Trust Indenture Act |
24 |
Section 1.08. Effect of Headings and Table of Contents |
24 |
Section 1.09. Successors and Assigns |
24 |
Section 1.10. Separability Clause |
24 |
Section 1.11. Benefits of Indenture |
24 |
Section 1.12. Governing Law |
24 |
Section 1.13. Legal Holidays |
24 |
Section 1.14. Language of Notices, Etc. |
25 |
Section 1.15. No Personal Liability |
25 |
Section 1.16. Notices |
25 |
Section 1.17. Counterparts |
26 |
|
|
ARTICLE Two |
|
|
Maturity Extension; EXTENSION PERIOD INTEREST RATE |
26 |
|
|
Section 2.01. Maturity Extension |
26 |
Section 2.02. Extension Period Interest |
27 |
|
|
ARTICLE Three |
|
|
THE NOTES |
28 |
|
|
Section 3.01. Form and Dating |
28 |
Section 3.02. Denominations |
28 |
Section 3.03. Execution, Authentication, Delivery and Dating |
28 |
Section 3.04. Temporary Notes |
29 |
Section 3.05. Registration, Registration of Transfer and Exchange |
29 |
Section 3.06. Mutilated, Destroyed, Lost and Stolen Notes |
30 |
Section 3.07. Payment of Interest; Interest Rights Preserved |
31 |
Section 3.08. Persons Deemed Owners |
32 |
Section 3.09. Cancellation |
32 |
Section 3.10. Currency |
32 |
Section 3.11. CUSIP Numbers |
33 |
TABLE OF CONTENTS
(Continued)
Page
ARTICLE Four |
|
|
Satisfaction and Discharge |
33 |
|
|
Section 4.01. Satisfaction and Discharge of Indenture |
33 |
Section 4.02. Application of Trust Money |
34 |
|
|
ARTICLE Five |
|
|
Remedies |
34 |
|
|
Section 5.01. Events of Default |
34 |
Section 5.02. Acceleration of Maturity; Rescission and Annulment |
36 |
Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee |
38 |
Section 5.04. Trustee May File Proofs of Claim |
39 |
Section 5.05. Trustee May Enforce Claims Without Possession of Notes |
39 |
Section 5.06. Application of Money Collected |
39 |
Section 5.07. Limitation on Suits |
40 |
Section 5.08. Unconditional Right of Holders to Receive Payment |
40 |
Section 5.09. Restoration of Rights and Remedies |
41 |
Section 5.10. Rights and Remedies Cumulative |
41 |
Section 5.11. Delay or Omission Not Waiver |
41 |
Section 5.12. Control by Holders |
41 |
Section 5.13. Waiver of Past Defaults |
41 |
Section 5.14. Undertaking for Costs |
42 |
Section 5.15. Waiver of Usury, Stay or Extension Laws |
42 |
|
|
ARTICLE Six |
|
|
The Trustee |
42 |
|
|
Section 6.01. Certain Duties and Responsibilities |
42 |
Section 6.02. Notice of Defaults |
43 |
Section 6.03. Certain Rights of Trustee |
43 |
Section 6.04. Not Responsible for Recitals or Issuance of Notes |
44 |
Section 6.05. May Hold Notes |
44 |
Section 6.06. Money Held in Trust |
44 |
Section 6.07. Compensation and Reimbursement |
45 |
Section 6.08. Conflicting Interests |
45 |
Section 6.09. Corporate Trustee Required; Eligibility |
45 |
Section 6.10. Resignation and Removal; Appointment of Successor |
45 |
Section 6.11. Acceptance of Appointment by Successor |
47 |
Section 6.12. Merger, Conversion, Consolidation or Succession to Business |
47 |
Section 6.13. Preferential Collection of Claims Against Company |
48 |
Section 6.14. Appointment of Authenticating Agent |
48 |
Section 6.15. Rules by Trustee |
50 |
TABLE OF CONTENTS
(Continued)
Page
ARTICLE Seven |
|
|
Holders’ Lists and Reports by Trustee and Company |
50 |
|
|
Section 7.01. Company to Furnish Trustee Names and Addresses of Holders |
50 |
Section 7.02. Preservation of Information; Communications to Holders |
51 |
Section 7.03. Reports by Trustee |
51 |
|
|
ARTICLE Eight |
|
|
Consolidation, Merger, Conveyance, Transfer or Lease |
52 |
|
|
Section 8.01. Company May Consolidate, Etc., Only on Certain Terms |
52 |
Section 8.02. Subsidiary Guarantor May Consolidate, Etc., Only on Certain Terms; Successor
Substituted |
53 |
|
|
ARTICLE Nine |
|
|
AMENDMENT, SUPPLEMENT AND WAIVER |
54 |
|
|
Section 9.01. Without Consent of Holders |
54 |
Section 9.02. With Consent of Holders |
55 |
Section 9.03. Execution of Supplemental Indentures |
56 |
Section 9.04. Effect of Supplemental Indentures |
57 |
Section 9.05. [Reserved] |
57 |
Section 9.06. Reference in Notes to Supplemental Indentures |
57 |
|
|
ARTICLE Ten |
|
|
Covenants |
57 |
|
|
Section 10.01. Payment of Principal, Accreted Value, Premium and Interest |
57 |
Section 10.02. Maintenance of Office or Agency |
57 |
Section 10.03. Money for Notes Payments to Be Held in Trust |
58 |
Section 10.04. Statement by Officers as to Default |
59 |
Section 10.05. Existence |
59 |
Section 10.06. Payment of Taxes and Liens |
59 |
Section 10.07. Limitations on Incurrence of Debt and Issuance of Preferred Stock |
59 |
Section 10.08. Maintenance of Total Unencumbered Assets |
61 |
Section 10.09. Limitations on Liens |
61 |
Section 10.10. Provision of Financial Information |
61 |
Section 10.11. Limitation on Collateral Asset Sales; Event of Loss |
62 |
Section 10.12. Repurchase of Notes upon Change of Control |
64 |
Section 10.13. Post-Closing Mortgages |
65 |
Section 10.14. Maintenance of Property |
66 |
Section 10.15. Insurance |
66 |
Section 10.16. Environmental Matters |
66 |
Section 10.17. Additional Subsidiary Guarantors |
67 |
Section 10.18. Transactions with Affiliates |
67 |
TABLE OF CONTENTS
(Continued)
Page
ARTICLE Eleven |
|
|
Redemption of Notes |
68 |
|
|
Section 11.01. Redemption at the Option of the Company |
68 |
Section 11.02. Election to Redeem; Notice to Trustee |
68 |
Section 11.03. Mandatory Redemption |
68 |
Section 11.04. Selection by Trustee of Notes to Be Redeemed |
69 |
Section 11.05. Notice of Redemption |
69 |
Section 11.06. Deposit of Redemption Price |
70 |
Section 11.07. Notes Payable on Redemption Date |
70 |
Section 11.08. Notes Redeemed in Part |
71 |
|
|
ARTICLE Twelve |
|
|
SUBSIDIARY GUARANTEES |
71 |
|
|
Section 12.01. Subsidiary Guarantee |
71 |
Section 12.02. Limitation on Subsidiary Guarantor Liability |
72 |
Section 12.03. Execution and Delivery of Subsidiary Guarantee |
73 |
Section 12.04. Release of a Subsidiary Guarantor |
73 |
Section 12.05. Benefits Acknowledged |
74 |
Section 12.06. Waiver of Subrogation |
74 |
Section 12.07. Same Currency; No Set Off |
75 |
Section 12.08. Guarantee Obligations Continuing |
75 |
Section 12.09. No Merger or Waiver; Cumulative Remedies |
75 |
Section 12.10. Dealing with the Company and Others |
75 |
Section 12.11. Enforcement; Expenses |
76 |
|
|
ARTICLE Thirteen |
|
|
Defeasance and Covenant Defeasance |
76 |
|
|
Section 13.01. Company’s Option to Effect Defeasance or Covenant Defeasance |
76 |
Section 13.02. Defeasance and Discharge |
76 |
Section 13.03. Covenant Defeasance |
77 |
Section 13.04. Conditions to Defeasance or Covenant Defeasance |
77 |
Section 13.05. Deposited Money and Government Obligations to Be Held in Trust;
Miscellaneous Provisions |
79 |
Section 13.06. Reinstatement |
79 |
TABLE OF CONTENTS
(Continued)
Page
ARTICLE Fourteen |
|
|
COLLATERAL AND SECURITY |
80 |
|
|
Section 14.01. The Collateral Agent |
80 |
Section 14.02. Acceptance of Security Documents |
84 |
Section 14.03. Further Assurances |
84 |
Section 14.04. Release of Liens |
84 |
Section 14.05. Compensation and Indemnification |
86 |
Exhibits
Exhibit A – Form of Note
Exhibit B – Form of Transferee Letter of Representation
Exhibit C – Form of Supplemental Indenture
Exhibit D – Form of Mortgage
INDENTURE,
dated as of December 21, 2023, among Diversified Healthcare Trust, a real estate investment trust organized and existing under the
laws of the State of Maryland (the “Company”) having its principal office at Two Newton Place, 255 Washington Street,
Suite 300, Newton, Massachusetts 02458, the other entities (other than the Trustee (as defined below)) listed on the signature pages hereto
(the “Initial Subsidiary Guarantors”) and U.S. Bank Trust Company, National Association, a national banking organization
organized and existing under the laws of the United States, as Trustee (in such role, the “Trustee”) and Collateral
Agent (in such role, “Collateral Agent”).
RECITALS
WHEREAS,
the Company is party to that certain Amended and Restated Credit Agreement, dated as of August 1, 2017 (as amended by that certain
First Amendment to Amended and Restated Credit Agreement dated as of June 30, 2020, that certain Second Amendment to Amended and
Restated Credit Agreement, dated as of January 29, 2021, that certain Third Amendment to Amended and Restated Credit Agreement,
dated as of September 3, 2021, that certain Fourth Amendment to Amended and Restated Credit Agreement, dated as of June 22,
2022, that certain Fifth Amendment to Amended and Restated Credit Agreement, dated as of February 14, 2023, the “Existing
Credit Agreement”), among the Company, the lenders party thereto from time to time, Wells Fargo Bank, National Association,
as administrative agent, and each of the other parties party thereto from time to time;
WHEREAS,
the Company has duly authorized the creation and issuance of $940,534,000 aggregate Principal Amount At Maturity of Senior Secured Notes
due 2026 (the “Notes”) in order to refinance and replace, as the case may be, the Existing Credit Agreement in whole,
and certain other indebtedness; and
WHEREAS,
the Company and the Initial Subsidiary Guarantors have duly authorized the execution and delivery of this Indenture (as defined herein).
NOW,
THEREFORE, THIS INDENTURE WITNESSETH for and in consideration of the premises and the purchase of the Notes by the Holders
thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE One
Definitions
and Other Provisions of General Application
Section 1.01. 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 which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned
to them therein;
(c) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with United States generally accepted
accounting principles;
(d) unless
otherwise specifically set forth herein, all calculations or determinations of a Person shall be performed or made on a consolidated
basis in accordance with generally accepted accounting principles;
(e) unless
the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section,
as the case may be, of this Indenture; and
(f) 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.
“Accreted Value”
means, as of any date (the “Specified Date”), the amount provided below for each $1,000 Principal Amount At Maturity
of Notes:
(i) if
the Specified Date occurs on one of the following dates (each, a “Semi-Annual Accrual Date”), the Accreted Value will
equal the amount set forth below for such Semi-Annual Accrual Date:
Semi-Annual Accrual Date | |
Accreted
Value | |
January 15, 2024 | |
$ | 803.40 | |
July 15, 2024 | |
$ | 848.59 | |
January 15, 2025 | |
$ | 896.33 | |
July 15, 2025 | |
$ | 946.75 | |
January 15, 2026 | |
$ | 1,000.00 | |
(ii) if
the Specified Date occurs before the first Semi-Annual Accrual Date, the Accreted Value will equal the sum of (a) the original issue
price (for each $1,000 Principal Amount At Maturity) of a Note and (b) the amount equal to the product of (x) the Accreted
Value for the first Semi-Annual Accrual Date less such original issue price multiplied by (y) a fraction, the numerator of which
is the number of days from the Issue Date to the Specified Date, using a 360-day year of twelve 30-day months, and the denominator of
which is the number of days from the Issue Date to the first Semi-Annual Accrual Date, using a 360-day year of twelve 30-day months;
or
(iii) if
the Specified Date occurs between two Semi-Annual Accrual Dates, the Accreted Value will equal the sum of (a) the Accreted Value
for the Semi-Annual Accrual Date immediately preceding such Specified Date and (b) an amount equal to the product of (x) the
Accreted Value for the immediately following Semi-Annual Accrual Date less the Accreted Value for the Semi-Annual Accrual Date immediately
preceding such Specified Date multiplied by (y) a fraction, the numerator of which is the number of days from the immediately preceding
Semi-Annual Accrual Date to the Specified Date, using a 360-day year of twelve 30-day months, and the denominator of which is 180.
“Acquired Debt”
means Debt of a Person (i) existing at the time such Person becomes a Subsidiary or (ii) assumed in connection with the acquisition
of assets from such Person, in each case, other than Debt incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Debt shall be deemed to be incurred on the date of the related acquisition of assets from any
Person or the date the acquired Person becomes a Subsidiary.
“Act,”
when used with respect to any Holder, has the meaning specified in Section 1.04.
“Adjusted Total
Assets” has the meaning provided in Section 10.07(a) of this Indenture.
“Affiliate”
of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified
Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Affiliate Transaction”
has the meaning provided in Section 10.18(a) of this Indenture.
“Annual Debt Service”
as of any date means the maximum amount which is expensed in any 12-month period for interest on Debt of the Company and its Subsidiaries,
excluding amortization of debt discounts and deferred financing costs.
“Authenticating
Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
the Notes.
“Authorized Newspaper”
means a newspaper, in the English language or in an official language of the country of publication, customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Where successive publications are required to be made in Authorized Newspapers,
the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
“Bankruptcy Law”
means Title 11, United States Bankruptcy Code of 1978, as amended, or any similar United States federal or state law relating to bankruptcy,
insolvency, receivership, winding-up, liquidation, reorganization or relief of debtors or any amendment to, succession to or change in
any such law.
“Board”
means either the board of trustees of the Company or any duly authorized committee of that board.
“Board Resolution”
means a copy of a resolution certified by a Secretary or Assistant Secretary of the Company to have been duly adopted by the Board and
to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day,”
when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.
“Capital Stock”
means, with respect to any Person, any capital stock (including preferred stock), shares, interests, participation or other ownership
interests (however designated) of such Person and any rights (other than debt securities convertible into or exchangeable for capital
stock), warrants or options to purchase any thereof.
“Cash Equivalents”
means demand deposits, certificates of deposit or repurchase agreements with banks or other financial institutions, marketable obligations
issued or directly and fully guaranteed as to timely payment by the United States of America or any of its agencies or instrumentalities,
or any commercial paper or other obligation rated, at time of purchase, “P-2” (or its equivalent) or better by Moody’s
or “A-2” (or its equivalent) or better by Standard & Poor’s.
“Change of Control”
means the occurrence of one or more of the following events:
(i) any
direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a
series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as
a whole to any “person” or “group” (as such terms are defined in Sections 13(d) and 14(d) of the Exchange
Act), other than the Company or any of its Subsidiaries or one or more Permitted Holders;
(ii) a
“person” or “group” (as such terms are defined in Sections 13(d) and 14(d) of the Exchange Act), other
than one or more Permitted Holders, becomes the ultimate “beneficial owner” (as defined in Rule 13d-3 under the Exchange
Act, except that such person or group will be deemed to have “beneficial ownership” of all securities that such person or
group has the right to acquire, whether such right is exercisable immediately or only after the passage of time) of more than 50% of
the total voting power of the Voting Stock of the Company on a fully diluted basis;
(iii) the
approval by the holders of common shares of beneficial interest of the Company of any plan or proposal for the liquidation or dissolution
of the Company; or
(iv) RMR
or any of its subsidiaries ceases for any reason to act as the sole business manager for the Company.
Notwithstanding the foregoing,
a transaction will not be deemed to involve a Change of Control solely as a result of the Company becoming a direct or indirect wholly
owned subsidiary of a holding company if (A) the direct or indirect holders of the Voting Stock of such holding company immediately
following that transaction are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction
or (B) immediately following that transaction, no “person” or “group” (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act, but other than a holding company satisfying the requirements of this sentence), other
than one or more Permitted Holders, is the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly,
of Voting Stock representing more than 50% of the voting power of the Voting Stock of such holding company.
“Change of Control
Offer” has the meaning specified in Section 10.12.
“Change of Control
Payment Date” has the meaning specified in Section 10.12.
“Collateral”
means all of the Collateral Property and the Pledged Collateral, in each case, pledged as collateral to secure the Notes Obligations
pursuant to the terms of the Security Documents.
“Collateral
Asset Sale” means the sale, lease, conveyance or other disposition of any assets constituting Collateral by the Company
or any of its Subsidiary Guarantors that own Collateral; but expressly excluding the sale, lease, conveyance or other disposition of
all or substantially all of the assets of the Company and the Subsidiary Guarantors taken as a whole (which is governed by Section 8.01,
Section 8.02 and/or Section 10.12 of this Indenture, as applicable).
Notwithstanding the preceding
provisions, none of the following will be deemed to be a Collateral Asset Sale:
(i) a
sale, lease, conveyance or other disposition of assets constituting Collateral between or among (x) the Company or any Collateral
Guarantor and any other Collateral Guarantor, and (y) the Company or any Collateral Guarantor and any other Subsidiary or entity,
provided that any such sale, lease, conveyance or other disposition is made subject to any Mortgage securing such Collateral and in the
case of this clause (y), concurrently with such sale, lease, conveyance or other disposition, such Subsidiary or entity becomes a Collateral
Guarantor and expressly assumes all obligations as a Collateral Guarantor under the Note Documents pursuant to a supplemental indenture
or other documents or instruments in a form reasonably satisfactory to the Trustee;
(ii) any
transfer, assignment or other disposition deemed to occur in connection with the creation or granting of Liens not prohibited by Section 10.09;
(iii) sales,
leases, conveyances or other dispositions of property or assets constituting Collateral subject to foreclosure proceedings, an Event
of Loss or a surrender or waiver of contract rights or the settlement, release or surrender of contract, tort or other claims of any
kind with respect to the Collateral;
(iv) leasing,
subleasing, licensing, or sublicensing assets and easements in the ordinary course of business; and
(v) dispositions
and/or termination of leases, subleases, licenses or sublicenses.
“Collateral Asset Sale Redemption”
has the meaning specified in Section 10.11(b).
“Collateral
Guarantor” means a Subsidiary Guarantor that owns directly or indirectly any Collateral Property.
“Collateral
Property” means the fee owned real property identified in the Disclosure Letter to the Purchase Agreement dated December 18,
2023, among the Company, the Subsidiary Guarantors and the initial purchasers party thereto.
“Collateral
Property Release” has the meaning specified in Section 14.04(c).
“Commission”
means the Securities and Exchange Commission.
“Company”
means the Person named as the “Company” 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 “Company” shall mean such successor Person.
“Company Request”
or “Company Order” means a written request or order signed in the name of the Company by a Managing Trustee, its Chief
Executive Officer, its Chief Operating Officer, its Chief Financial Officer, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Controller, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Consolidated Income
Available for Debt Service” for any period means Earnings from Operations of the Company and its Subsidiaries plus amounts
which have been deducted, and minus amounts which have been added, for the following (without duplication): (i) interest or distributions
on Debt of the Company and its Subsidiaries, (ii) provision for taxes of the Company and its Subsidiaries based on income, (iii) amortization
of debt premiums/discounts and deferred debt issuance costs, (iv) provisions for gains and losses on properties and property depreciation
and amortization, (v) the effect of any noncash charge resulting from a change in accounting principles in determining Earnings
from Operations for such period and (vi) amortization of deferred charges.
“Corporate Trust
Office” means the principal office of the Trustee at which at any particular time its corporate trust business shall be administered,
which on the date hereof is located at One Federal Street, 3rd Floor, Boston, Massachusetts 02110.
“corporation”
means a corporation, association, partnership, limited liability, joint-stock or other company, real estate investment trust or business
trust.
“Covenant Defeasance”
has the meaning specified in Section 13.03.
“Custodian”
means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
“Debt”
of the Company or any Subsidiary means, without duplication, any indebtedness of the Company or any Subsidiary, whether or not contingent,
in respect of:
(i) borrowed
money or evidenced by bonds, notes, debentures or similar instruments;
(ii) borrowed
money secured by any Lien existing on property owned by the Company or any Subsidiary, to the extent of the lesser of (x) the amount
of indebtedness so secured or (y) the Fair Market Value of the property subject to such Lien;
(iii) the
reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued (other than letters of credit
issued to provide credit enhancement or support with respect to other indebtedness of the Company or any Subsidiary otherwise reflected
as Debt hereunder) or amounts representing the balance deferred and unpaid of the purchase price of any property or services, except
any such balance that constitutes an accrued expense or trade payable, or all conditional sale obligations or obligations under any title
retention agreement;
(iv) the
principal amount of all obligations of the Company or any Subsidiary with respect to redemption, repayment or other repurchase of any
Disqualified Stock; or
(v) any
lease of property by the Company or any Subsidiary as lessee which is reflected on the Company’s consolidated balance sheet as
a capitalized lease in accordance with generally accepted accounting principles,
to
the extent, in the case of items of indebtedness under (i) through (v) above, that any such items (other than letters
of credit) would be properly classified as a liability on the Company’s consolidated balance sheet in accordance with generally
accepted accounting principles. Debt also (1) excludes any indebtedness (A) with respect to which a defeasance or covenant
defeasance or discharge has been effected (or an irrevocable deposit is made with a trustee in an amount at least equal to the outstanding
principal amount of such indebtedness, the remaining scheduled payments of interest thereon to, but not including, the applicable maturity
date or redemption date, and any premium or otherwise as provided in the terms of such indebtedness) in accordance with the terms thereof
or which has been repurchased, retired, repaid, redeemed, irrevocably called for redemption (and an irrevocable deposit is made with
a trustee in an amount at least equal to the outstanding principal amount of such indebtedness, the remaining scheduled payments of interest
thereon to, but not including, such redemption date, and any premium) or otherwise satisfied or (B) that is secured by cash or Cash
Equivalents irrevocably deposited with a trustee in an amount, in the case of this clause (B), at least equal to the outstanding principal
amount of such indebtedness and the remaining scheduled payments of interest thereon and (2) includes, to the extent not otherwise
included, any obligation by the Company or any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise (other than
for purposes of collection in the ordinary course of business), Debt of another Person (other than the Company or any Subsidiary ) (it
being understood that Debt shall be deemed to be incurred by the Company or any Subsidiary whenever the Company or such Subsidiary shall
create, assume, guarantee or otherwise become liable in respect thereof).
“Defaulted Interest”
has the meaning specified in Section 3.07.
“Defeasance”
has the meaning specified in Section 13.02.
“Depositary”
means, with respect to Notes issuable in whole or in part in the form of one or more Global Notes, a clearing agency registered under
the Exchange Act that is designated to act as Depositary for such Notes as contemplated by Section 3.01.
“Disqualified Stock”
means, with respect to any Person, any Capital Stock of such Person which by the terms of such Capital Stock (or by the terms of any
security into which it is convertible or for which it is exchangeable or exercisable), upon the happening of any event or otherwise (i) matures
or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise (other than Capital Stock which is redeemable solely
in exchange for Capital Stock which is not Disqualified Stock or for Subordinated Debt), (ii) is convertible into or exchangeable
or exercisable for Debt, other than Subordinated Debt, or Disqualified Stock, or (iii) is redeemable at the option of the holder
thereof, in whole or in part (other than Capital Stock which is redeemable solely in exchange for Capital Stock which is not Disqualified
Stock or for Subordinated Debt), in each case on or prior to the Stated Maturity of the principal of the Notes.
“Domestic Subsidiary”
means any Subsidiary of the Company that was organized under the laws of the United States or any state of the United States or the District
of Columbia (excluding, for the avoidance of doubt, any Subsidiary organized under U.S. possessions such as Puerto Rico).
“Earnings from Operations”
for any period means net earnings excluding gains and losses on sales of investments, gains or losses on early extinguishment of debt,
extraordinary items and property valuation losses, in each case as reflected in the financial statements of the Company and its Subsidiaries
for such period, determined on a consolidated basis in accordance with generally accepted accounting principles.
“Environmental Laws”
means any applicable law relating to environmental protection or the manufacture, storage, remediation, disposal or clean-up of Hazardous
Materials including, without limitation, the following: Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water Pollution Control
Act, 33 U.S.C. § 1251 et seq.; Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C. §
6901 et seq.; Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; National Environmental
Policy Act, 42 U.S.C. § 4321 et seq.; regulations of the Environmental Protection Agency, any applicable rule of common law
and any judicial interpretation thereof relating primarily to the environment or Hazardous Materials, and any analogous or comparable
state or local laws, regulations or ordinances that concern Hazardous Materials or protection of the environment.
“Event of Default”
has the meaning specified in Section 5.01.
“Event
of Loss” means with respect to the Collateral any (i) casualty, loss, damage, destruction or other similar loss,
(ii) condemnation, taking or seizure by a governmental authority of assets or property, or any part thereof or interest therein,
for public or quasi-public use under the power of eminent domain, by reason of any public improvement or condemnation or (iii) settlement
in lieu of clause (ii) above.
“Event of Loss Redemption”
has the meaning specified in Section 10.11(c).
“Exchange Act”
means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Excluded
Subsidiary” means any Subsidiary of the Company (i) that is not a Wholly Owned Subsidiary or that holds no material
assets other than the Capital Stock of one or more Subsidiaries that are not Wholly Owned Subsidiaries, or (ii) (a) holding
title to or beneficially owning Property which is subject to a Lien securing Debt of such Subsidiary other than the Notes, or being a
beneficial owner of a Subsidiary of the Company holding title to or beneficially owning such Property (but having no material assets
other than such beneficial ownership interests or the Capital Stock of a Subsidiary of the Company having no material assets other than
such beneficial ownership interests) and (b) which (x) is, or is expected to be, prohibited from Guaranteeing the indebtedness
of any other Person pursuant to any document, instrument or agreement evidencing such Secured Debt or (y) is prohibited from Guaranteeing
the indebtedness of any other Person pursuant to a provision of such Subsidiary’s organizational documents which provision was
included in such Subsidiary’s organizational documents as a condition or anticipated condition to the extension of such Secured
Debt; for purposes of this subsection (ii), any Subsidiary which is a lessee under a lease with a Subsidiary which is an Excluded Subsidiary
under this subsection (ii) shall also be deemed to be an Excluded Subsidiary. In addition, each of CCC of Kentucky Trust, SNH GP
Valencia LLC, SNH Liberty II Inc. and RSA Healthcare, Inc., a Tennessee corporation, shall be deemed to be an Excluded Subsidiary
for purposes of this definition. Notwithstanding anything to the contrary in this definition, any Subsidiary of the Company that becomes
a non-Wholly Owned Subsidiary as a result of a transfer or issuance of Capital Stock to RMR or any of its Affiliates, or in connection
with a transaction the primary purpose of which is to release such Subsidiary from its Subsidiary Guaranty, shall not constitute an Excluded
Subsidiary.
“Expiration Date”
has the meaning specified in Section 1.04.
“Extension Date”
has the meaning specified in Section 2.02(a).
“Extension Fee”
has the meaning specified in Section 2.01(a).
“Extension Notice”
has the meaning specified in Section 2.01(a).
“Extension Period”
means the Extension Date to but not including the date of the new Stated Maturity of the Notes, subject to a valid exercise of the Maturity
Extension by the Company in accordance with Section 2.01.
“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, as determined by the Company in good faith.
“Foreign Subsidiary”
means (a) any Real Foreign Subsidiary, (b) any Domestic Subsidiary that has no material assets (with the determination of materiality
to be made in good faith by the Company) other than Capital Stock of one or more Real Foreign Subsidiaries, and (c) any Subsidiary
(including any Subsidiary that would otherwise be a Domestic Subsidiary ) of the Company that owns any Capital Stock of a Real Foreign
Subsidiary if the provision of a subsidiary guarantee by such Subsidiary could reasonably be expected, in the good faith judgment of
the Company, to cause any earnings of such Real Foreign Subsidiary, as determined for U.S. federal income tax purposes, to be treated
as a deemed dividend to such Real Foreign Subsidiary’s United States parent for U.S. federal income tax purposes.
“Funded Debt”
means indebtedness for borrowed money or any obligation to be liable for, or to pay, as obligor, guarantor or otherwise such indebtedness.
“generally accepted
accounting principles” means, solely for purposes of determining compliance with any provision of Sections 10.07 and 10.08
which requires the calculation of any financial ratio or percentage, generally accepted accounting principles in the United States of
America, which were in effect on December 20, 2001. For all other purposes, “generally accepted accounting principles”
means generally accepted accounting principles in the United States of America in effect from time to time.
“Government Obligation”
has the meaning specified in Section 13.04.
“Governmental Approvals”
means all authorizations, consents, approvals, licenses and exemptions of, registrations and filings with, and reports to, all Governmental
Authorities.
“Governmental Authority”
means any national, state or local government (whether domestic or foreign), any political subdivision thereof or any other governmental,
quasi-governmental, judicial, administrative, public or statutory instrumentality, authority, body, agency, bureau, commission, board,
department or other entity (including, without limitation, the Federal Deposit Insurance Corporation, the Comptroller of the Currency
or the Federal Reserve Board, any central bank or any comparable authority) or any arbitrator with authority to bind a party at law.
“Guarantee”
means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any indebtedness of any other Person
and any obligation, direct or indirect, contingent or otherwise, of such Person:
(i) 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 agreement to keep-well, to purchase assets, goods, securities or services, to take-or-pay,
or to maintain financial statement conditions or otherwise); or
(ii) 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” will not include endorsements
for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Hazardous Materials”
means all or any of the following: (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable
Environmental Laws as “hazardous substances”, “hazardous materials”, “hazardous wastes”, “toxic
substances” or any other formulation intended to define, list or classify substances by reason of deleterious properties such as
ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, “TCLP” toxicity, or “EP toxicity”;
(b) oil, petroleum or petroleum derived substances, natural gas, natural gas liquids or synthetic gas and drilling fluids, produced
waters and other wastes associated with the exploration, development or production of crude oil, natural gas or geothermal resources;
(c) any flammable substances or explosives or any radioactive materials; (d) asbestos in any form; (e) toxic mold; and
(f) electrical equipment which contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million.
“Holder”
means a Person in whose name a Note is registered in the Security Register.
“Incremental Amount”
means an amount equal to the difference, if positive, between (x) 80% of the value (as of the Issue Date as determined by the Company)
of the Collateral subject to a Collateral Asset Sale and (y) the Fair Market Value of the Collateral subject to a Collateral Asset
Sale as determined in accordance with Section 10.11(a). For the avoidance of doubt, if the Fair Market Value referred to in clause
(y) is greater than the value referred to in clause (x), the Incremental Amount shall be $0.
“Indenture”
means this instrument as may be amended, restated, supplemented, modified, renewed, refunded, increased, extended, replaced in
any manner (whether upon or after termination or otherwise) or refinanced in whole or in part from time to time.
“Initial Default”
has the meaning specified in Section 5.02.
“Interest
Payment Date” has the meaning specified in Section 2.02(b).
“Interest Period”
means, during the Extension Period, if any, the period beginning on (and including) an Interest Payment Date and ending on (but excluding)
the next succeeding Interest Payment Date; provided that the first Interest Period will begin on (and include) January 15, 2026
and will end on (but excluding) the first Interest Payment Date.
“Issue Date” means December 21,
2023.
“Joint Venture Interests”
means assets of the Company and its Subsidiaries constituting an equity investment in real estate assets or other properties, or in an
entity holding real estate assets or other properties, jointly owned by the Company and its Subsidiaries, on the one hand, and one or
more other Persons not constituting Affiliates of the Company, on the other hand, excluding any entity or properties (i) which is
a Subsidiary or are properties if the co-ownership thereof (if in a separate entity) would constitute or would have constituted a Subsidiary,
or (ii) to which, at the time of determination, the Company’s manager at such time or an Affiliate of the Company’s
manager at such time provides management services. In no event shall Joint Venture Interests include equity securities that are part
of a class of equity securities that are traded on a national or regional securities exchange or a recognized over-the-counter market
or any investments in debt securities, mortgages or other Debt.
“Lien”
means, with respect to any asset, any mortgage, lien, charge, pledge, security interest or other encumbrance of any kind.
“Material Adverse
Effect” means any event, circumstance or condition that has had, or could reasonably be expected to have, a material adverse
effect on (a) the business, assets, liabilities, results of operations or financial condition of the Company and the Subsidiary
Guarantors, taken as a whole, (b) the ability of the Company and the Subsidiary Guarantors, taken as a whole, to perform their payment
obligations under this Indenture or (c) the rights and remedies of the Holders.
“Maturity,”
when used with respect to the Notes, means the date on which the principal or Accreted Value, as applicable, of such Notes or an installment
of principal or Accreted Value, as applicable, becomes due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise, but shall not include any date on which the payment of principal
of such security is due and payable as a result of any contingent obligations to repay, redeem or repurchase any such principal prior
to the date originally scheduled for the payment thereof.
“Maturity Extension”
has the meaning specified in Section 2.01.
“Moody’s”
means Moody’s Investors Service, Inc. or any successor thereof.
“Mortgage”
means any mortgage, deed of trust or other agreement which conveys or evidences a Lien in favor of the Collateral Agent, for the benefit
of the Collateral Agent and the Trustee and the Holders of the Notes, on any Collateral Property substantially in the form of the mortgage
attached hereto as Exhibit D.
“Mortgage Policies”
has the meaning specified in Section 10.13(a).
“Net Proceeds”
means, with respect to any Collateral Asset Sale or Event of Loss, the cash proceeds (including Cash Equivalents and cash proceeds subsequently
received (as and when received) in respect of non-cash consideration initially received), net of (i) selling costs and out-of-pocket
expenses (including reasonable broker’s fees or commissions, legal fees, transfer and similar taxes and the Company’s good
faith estimate of income (however, denominated), gross receipts, and franchise taxes paid or payable by the Company or a Subsidiary Guarantor
or any of their respective Subsidiaries or joint ventures (including pursuant to tax sharing arrangements or any tax distributions) in
connection with such sale, lease, conveyance or other disposition), (ii) amounts provided as a reserve in accordance with generally
accepted accounting principles against any liabilities under any indemnification obligation or purchase price adjustment associated with
such Collateral Asset Sale or Event of Loss (provided that to the extent and at the time any such amounts are released from such reserve
(other than in connection with a payment in respect of such liability), such amounts shall constitute Net Proceeds), (iii) the principal
amount, premium or penalty, if any, interest and other amounts on any Debt (other than the Notes) which is secured by the asset sold
in such Collateral Asset Sale or subject to the Event of Loss and which is required to be repaid or otherwise comes due as a result of
such Collateral Asset Sale or Event of Loss and is repaid (other than any such Debt that is assumed by the purchaser of such asset),
(iv) cash escrows (until released from escrow to the Company or any Subsidiary) of funds received pursuant to a Collateral Asset
Sale or Event of Loss and (v) any charges, payments or expenses incurred in connection with an Event of Loss (including, without
limitation, (A) any exit or disposal costs, (B) costs to replace, repair or reconstruct damaged Collateral subject to the Event
of Loss or any associated environmental remediation costs, charges or payments, (C) any penalties or fines, (D) any continuing
or unsatisfied obligations of the Company or any Subsidiary to tenants, operators or managers of such Collateral Property and (E) any
fees, settlement payments or other charges related to any litigation or administrative proceeding resulting from such Event of Loss).
To the extent the amounts that must be netted against any cash proceeds and Cash Equivalents cannot be reasonably determined by the Company
with respect to any Event of Loss, such cash proceeds and Cash Equivalents shall not be deemed received until such amounts to be netted
are known by the Company.
“Non-Collateral
Guarantor” means a Subsidiary Guarantor that does not directly or indirectly own Collateral.
“Note Documents”
means this Indenture, the Notes, the Guarantees and the Security Documents.
“Notes”
means the Company’s Senior Secured Notes due 2026, issued under this Indenture, as amended or supplemented from time to time.
“Notes Obligations”
means all obligations for principal, Accreted Value, premium (if any), cash interest (if any, during an Extension Period), penalties,
fees, indemnifications, reimbursements, damages, liabilities and other amounts payable of the Company and the Subsidiary Guarantors under
the Note Documents.
“Notice”
has the meaning specified in Section 1.17.
“Notice of Default”
means a written notice of the kind specified in Sections 5.01(d) and 5.01(g).
“Officer’s
Certificate” means a certificate signed on behalf of the Company by a Managing Trustee, the Chief Executive Officer, the Chief
Operating Officer, the Chief Financial Officer, the Controller, the President, a Vice President, the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company and delivered to the Trustee.
“Opinion of Counsel”
means a written opinion of legal counsel addressed to the Trustee. The counsel may be an employee of or counsel to the Company or any
Affiliate.
“Optional Redemption”
has the meaning specified in Section 11.01.
“Outstanding,”
when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Notes
for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Notes; provided that, if such Notes 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) Notes
as to which Defeasance has been effected pursuant to Section 13.02 or satisfaction and discharge has been effected pursuant to Article Four;
and
(iv) Notes
which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Notes have been authenticated and delivered
pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company;
provided,
however, that in determining whether the Holders of the requisite principal amount of the Outstanding Notes have given, made or
taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, or whether a quorum
is present at a meeting of Holders of Notes, (A) the principal amount of Notes which shall be deemed to be Outstanding shall be
the Accreted Value as of such date, (B) if, as of such date, the Accreted Value is not determinable, the principal amount of such
Note which shall be deemed to be Outstanding shall be the principal amount which would be due and payable at the Stated Maturity, and
(C) Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor shall
be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other action, or upon any such determination as to the presence
of a quorum, only Notes that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Notes so owned
which 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 Notes and that the pledgee is not the Company or any other obligor upon the Notes
or any Affiliate of the Company or of such other obligor.
“Paying Agent”
means any Person authorized by the Company to pay the principal or Accreted Value of (and premium, if any), as applicable, and, on or
after the Extension Date, any cash interest on, the Notes on behalf of the Company.
“Permitted Holder”
means (i) RMR or any Person to which RMR or its subsidiaries provide management services, in each case, so long as one or more Principal
Parties together, directly or indirectly, control RMR, (ii) a Principal Party and (iii) any Person, directly or indirectly,
controlled by a Principal Party.
“Permitted Liens”
means:
(i) Liens
securing the Notes Obligations;
(ii) [reserved];
(iii) Liens
securing (1) taxes, assessments and other charges or levies imposed by any Governmental Authority (x) which are not then due
and payable or (y) if due and payable, which are being contested in good faith by appropriate proceedings and for which adequate
reserves have been established on the books of such Person in accordance with generally accepted accounting principles or (2) the
claims of materialmen, mechanics, carriers, warehousemen or landlords for labor, materials, supplies or rentals incurred in the ordinary
course of business, in each case, (x) the failure of which to pay would not reasonably be expected to result in a Material Adverse
Effect or (y) if such Lien is the responsibility of a financially responsible tenant, mortgagor or manager to discharge;
(iv) [reserved];
(v) [reserved];
(vi) with
respect to any Property, easements, covenants, conditions, rights-of-way, zoning restrictions, encroachments, encumbrances, and rights
or restrictions of record on the use of real property and other similar matters of record affecting title that do not (1) secure
obligations for the payment of money or (2) in the aggregate, materially impair the use of the affected property for its intended
purpose by the Company or any Subsidiary Guarantor in the normal conduct of such Person’s business;
(vii) Liens
granted by any tenant on its leasehold estate in a Property;
(viii) the
interests of tenants, operators or managers of Properties;
(ix) Liens
required under applicable law, or by any Governmental Authority, as a condition to ownership or operation of any Property on which the
improvements consist only of one or more of the following: (a) senior residences, (b) independent living facilities, (c) congregate
communities, (d) assisted living facilities, (e) nursing homes, (f) hospitals, and (g) other Property primarily used
for senior citizen residences or health care services, together with other improvements incidental thereto;
(x) judgment
liens (other than for the payment of taxes, assessments or other governmental charges) securing judgments and other proceedings not constituting
an Event of Default hereunder;
(xi) non-exclusive
licenses of intellectual property rights in the ordinary course of business;
(xii) matters
disclosed in any title report, commitment or policy provided to or obtained by Collateral Agent on or before Issue Date;
(xiii) [reserved];
or
(xiv) so
long as the Commitments (as defined in the Existing Credit Agreement) thereunder have been terminated and the Pari Passu Guaranteed Obligations
(as defined in the Existing Credit Agreement) have been indefeasibly paid and satisfied in full after giving effect to the issuance of
the Notes, Liens with respect to the Existing Credit Agreement until such time as the evidence of the release of Liens is filed or recorded,
in each case, in accordance with the payoff letter.
“Permitted Refinancing
Indebtedness” means Debt of the Company or any of its Subsidiaries issued in exchange for, or the net proceeds of which are
used to, or which serves to, extend, refinance, modify, renew, replace, defease, discharge or refund other Debt of the Company or any
of its Subsidiaries (other than intercompany Debt); provided that:
(A) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value,
if applicable) of the Debt so extended, refinanced, modified, renewed, replaced, discharged or refunded except by an amount equal to
accrued and unpaid interest and premium (including tender premiums) thereon plus other amounts paid, and fees and expenses incurred,
in connection with such modification, refinancing, refunding, replacement, substitution, renewal or extension and by an amount equal
to any existing revolving commitments unutilized thereunder to the extent that the portion of any existing and unutilized revolving commitment
being refinanced was permitted to be drawn immediately prior to such refinancing and such drawing shall be deemed to have been made;
(B) the Permitted Refinancing
Indebtedness has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Debt being
extended, refinanced, modified, renewed, replaced, defeased, discharged or refunded; and
(C) if the Debt being
extended, refinanced, modified, renewed, replaced, defeased, discharged or refunded is subordinated in right of payment to the Notes,
the Permitted Refinancing Indebtedness resulting from such extension, refinancing, modification, renewal, replacement, defeasance, discharge
or refund is subordinated in right of payment to the Notes on terms at least as favorable to Holders as those contained in the documentation
governing the indebtedness being extended, refinanced, modified, renewed, replaced, defeased, discharged or refunded.
For the avoidance of doubt,
Permitted Refinancing Indebtedness includes successive incurrences of Permitted Refinancing Indebtedness of the same Debt.
“Person”
means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision thereof.
“Place
of Payment,” means the place or places where the principal or Accreted Value of (and premium, if any) and, on or after
the Extension Date, any cash interest on, the Notes are payable as specified as contemplated by Section 10.02.
“Pledge
Agreement” means that certain Pledge Agreement dated as of the Issue Date, executed by the Company and Collateral Guarantors
in favor of the Collateral Agent for the benefit of the Collateral Agent, the Trustee and the Holders, as amended, restated, amended
and restated, supplemented or otherwise modified from time to time.
“Pledged Collateral”
has the meaning specified in the Pledge Agreement.
“Predecessor Note”
means every previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; and, for the purposes
of this definition, any Note authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed,
lost or stolen Note shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Note.
“Preferred Stock”
means, with respect to any Person, any and all Capital Stock that has 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 Issue Date or issued thereafter, including all series and classes of such preferred or
preference stock.
“Premium”
has the meaning specified in Section 5.02.
“Principal Amount
At Maturity” means, with respect to any Note, the aggregate fully accreted principal amount of such note calculated as of the
Stated Maturity, without giving effect to the Maturity Extension.
“Principal Party”
means the individual who, as of the Issue Date, is the ultimate controlling stockholder of RMR, and his immediate family members and
his and their lineal descendants.
“Property”
means any parcel of real property, together with all improvements thereon.
“Real Foreign Subsidiary”
means a Subsidiary of the Company that is not a Domestic Subsidiary.
“Record Date”
for the interest payable on any Interest Payment Date during the Extension Period, if any, means July 1 and January 1 (in each
case, whether or not a Business Day) next preceding such Interest Payment Date.
“Redemption Date,”
means the date fixed for redemption of the Notes by or pursuant to this Indenture.
“Redemption Price,”
means the price at which the Notes are to be redeemed pursuant to this Indenture.
“Reinvestment
Election” has the meaning specified in Section 10.11(d).
“Reinvestment Window”
has the meaning specified in Section 10.11(d).
“Responsible Officer,”
when used with respect to the Trustee, means the chairman or any vice-chairman of the board of directors, the chairman or any vice-chairman
of the executive committee of the board of directors, the chairman of the trust committee, the president, any vice president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer, the cashier, any assistant cashier, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer
to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject and who shall have responsibility
for the administration of this Indenture.
“RMR”
means The RMR Group LLC or its successors and assigns.
“Secured Debt”
means Debt of the Company or its Subsidiaries secured by a Lien on the property of the Company or its Subsidiaries.
“Securities Act”
means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Documents”
means the Pledge Agreement, any Security Instruments, any other documents granting a Lien upon the Collateral in favor of the Collateral
Agent for its benefit, the benefit of the Trustee and the ratable benefit of the Holders as security for payment of the Notes Obligations.
“Security
Instrument” means a mortgage, deed of trust, deed to secure debt, or equivalent instrument executed by a Collateral
Guarantor in favor of the Collateral Agent for its benefit, the benefit of the Trustee and the ratable benefit of the Holders as security
for payment of the Notes Obligations.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 3.05(a).
“Significant Subsidiary”
means any Subsidiary which is a “significant subsidiary” (within the meaning of Regulation S-X, promulgated by the Commission
under the Securities Act) of the Company.
“Special
Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“Standard &
Poor’s” means Standard & Poor’s Ratings Services, a Standard & Poor’s Financial Services
LLC business, or any successor thereof.
“Stated
Maturity,” when used with respect to the Notes or any installment of principal or Accreted Value, as applicable, and, on
or after the Extension Date, any cash interest, thereon, means the date specified in the Notes as the fixed date on which the principal
amount of such Note or such installment of principal or Accreted Value, as applicable, or, on or after the Extension Date, cash interest
thereon is due and payable.
“Subordinated Debt”
means Debt which by the terms of such Debt is subordinated in right of payment to the principal, accreted value and interest thereon
(during any Extension Period) and premium, if any, on the Notes.
“Subsidiary”
means any corporation or other Person of which a majority of (i) the voting power of the voting equity securities or (ii) the
outstanding equity interests of which are owned, directly or indirectly, by the Company or one or more other Subsidiaries of the Company,
and which is required to be consolidated in accordance with generally accepted accounting principles. For the purposes of this definition,
“voting equity securities” means equity securities having voting power for the election of directors or persons serving comparable
functions as directors, whether at all times or only so long as no senior class of security has such voting power by reason of any contingency.
“Subsidiary Guarantee”
means, individually, any Guarantee of payment of the Notes by a Subsidiary Guarantor pursuant to the terms of Article Twelve of
this Indenture.
“Subsidiary Guarantor”
means each Initial Subsidiary Guarantor and any other Subsidiary of the Company that provides a Subsidiary Guarantee of the Notes in
accordance with this Indenture; provided that upon the release or discharge of such Person from its Subsidiary Guarantee in accordance
with this Indenture, such Person ceases to be a Subsidiary Guarantor.
“Total Assets”
as of any date means the sum of (i) the Undepreciated Real Estate Assets and (ii) all other assets of the Company and its Subsidiaries
determined in accordance with generally accepted accounting principles (but excluding accounts receivable and intangibles).
“Total Unencumbered
Assets” as of any date means the sum of (i) Undepreciated Real Estate Assets not securing any portion of Secured Debt
and (ii) the amount of all other assets of the Company and its Subsidiaries not securing any portion of Secured Debt, in each case
on such date determined on a consolidated basis in accordance with generally accepted accounting principles (but excluding accounts receivable
and intangibles); provided that, in determining Total Unencumbered Assets as a percentage of the aggregate outstanding principal amount
of the Unsecured Debt of the Company and its Subsidiaries on a consolidated basis for purposes of the covenant set forth in Section 10.08
of this Indenture, Joint Venture Interests shall be excluded from Total Unencumbered Assets to the extent such Joint Venture Interests
would otherwise be included therein.
“Trust Indenture
Act” means the Trust Indenture Act of 1939 as in effect at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person
who is then a Trustee hereunder.
“UCC”
means the Uniform Commercial Code as in effect in any applicable jurisdiction.
“Undepreciated Real
Estate Assets” as of any date means the cost (original cost plus capital improvements) of real estate and associated tangible
personal property used in connection with the real estate assets of the Company and its Subsidiaries on such date, before depreciation
and amortization determined on a consolidated basis in accordance with generally accepted accounting principles.
“Unsecured Debt”
means any Debt of the Company or its Subsidiaries which is not Secured Debt.
“Vice President,”
when used with respect to the Company or the Trustee, means any vice president, whether or not designated by a number or a word or words
added before or after the title “vice president.”
“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,
trustees, managers or other voting members of the governing body of such Person.
“Weighted Average
Life to Maturity” means, when applied to any Debt at any date, the number of years obtained by dividing: (a) the sum of
the products obtained by multiplying (i) the amount of each then remaining installment, sinking fund, serial maturity or other required
payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of
such Debt.
“Wholly Owned Subsidiary”
means any Subsidiary of the Company of which all the outstanding Voting Stock of such Subsidiary (other than directors’ qualifying
shares and other than an immaterial amount of Voting Stock required to be owned by other Persons pursuant to applicable law or regulation)
is owned by the Company and/or one or more Subsidiaries of the Company.
Section 1.02. Compliance
Certificates and Opinions
Except as otherwise specified
in this Indenture, upon any application or request by the Company to the Trustee to take or refrain from taking any action under any
provision of this Indenture, the Company shall furnish to the Trustee (i) an Officer’s Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with and (ii) an Opinion of Counsel in form and substance reasonably satisfactory
to the Trustee stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 10.04)
shall include,
(i) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(ii) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a
statement that, in the opinion of each such individual, such individual 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; and
(iv) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03. 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 Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his or her certificate or opinion is based are erroneous. Any such certificate or 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 Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under
this Indenture, they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts
of Holders; Record Dates
Any request, demand, authorization,
direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made 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; and, 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 Company. 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 shall be
sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
The fact and date of the
execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate
of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him or her the execution thereof. Where such execution is by a signer acting in a capacity other than his
or her individual capacity, such certificate or affidavit shall also constitute sufficient proof of his or her authority. The fact and
date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Notes shall
be proved by the Security Register.
Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of the Notes shall bind every future Holder of the Notes and the Holder
of every Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon
such Note.
The Company may set any day
as a record date for the purpose of determining the Holders of Outstanding Notes entitled to give, make or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken
by Holders of Notes; provided that the Company may not set a record date for, and the provisions of this paragraph shall
not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If
any record date is set pursuant to this paragraph, the Holders of Outstanding Notes on such record date, and no other Holders, shall
be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that
no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Notes on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new
record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously
set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Notes on the date such action is taken.
Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record
date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Notes
in the manner set forth in Section 1.06.
The Trustee may set any day
as a record date for the purpose of determining the Holders of Outstanding Notes entitled to join in the giving or making of (i) any
Notice of Default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings
referred to in Section 5.07(b) or (iv) any direction referred to in Section 5.12, in each case with respect to the
Notes. If any record date is set pursuant to this paragraph, the Holders of Outstanding Notes on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record
date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Notes on such record date. Nothing in this paragraph shall be construed to
prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph
(whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing
in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding
on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s
expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the
Company in writing and to each Holder of Notes in the manner set forth in Section 1.06.
With respect to any record
date set pursuant to this Section 1.04, the party hereto that sets such record date may designate any day as the “Expiration
Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change
shall be effective unless notice of the proposed new Expiration Date is given to the other party in writing, and to each Holder of Notes
in the manner set forth in Section 1.06, on or prior to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section 1.04, the party hereto that sets such record date shall be deemed to have
initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change
the Expiration Date as provided in this paragraph.
Without limiting the foregoing,
a Holder entitled hereunder to take any action hereunder with regard to the Notes may do so with regard to all or any part of the principal
amount of such Note or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or
any part of such principal amount.
Section 1.05. Notices,
Etc., to Trustee and Company
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,
(i) the
Trustee by any Holder or by the Company 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: Diversified Healthcare Trust; Senior Secured Notes due 2026; or
(ii) the
Company 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, to the Company addressed to it at the address of its principal office specified
in the first paragraph of this instrument or at any other address previously furnished in writing to the Trustee by the Company.
Section 1.06. Notice
to Holders; Waiver
Where this Indenture provides
for notice to Holders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, to each Holder affected by such event, at the address of such Holder as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such
notice. Notwithstanding any other provision of this Indenture or the Notes other than a provision that expressly states that this paragraph
is not applicable to the Notes, when this Indenture or the Notes provides for notice of any event (including any notice of redemption)
to a Holder of Notes in global form (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary
for the Notes (or its designee) pursuant to the customary procedures of such Depositary. In any case where notice to Holders is given
by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing
by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In 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 mail, then such notification
as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.07. Trust
Indenture Act
Except with respect to specific
provisions of the Trust Indenture Act expressly referenced in the provisions of this Indenture, the Trust Indenture Act shall not be
applicable to, and shall not govern, this Indenture and the Notes.
Section 1.08. Effect
of Headings and Table of Contents
The Article and Section headings
herein and the Table of Contents hereof are for convenience only and shall not affect the construction hereof.
Section 1.09. Successors
and Assigns
All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.10. Separability
Clause
In case any provision in
this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 1.11. Benefits
of Indenture
Nothing in this Indenture
or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders
of Notes any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.12. Governing
Law
This Indenture and the Notes
shall be governed by and construed in accordance with the law of the State of New York.
Section 1.13. Legal
Holidays
If any Interest Payment Date,
Redemption Date, including pursuant to a Collateral Asset Sale, Event of Loss or Change of Control Payment Date for the Notes or the
Stated Maturity for the principal of the Notes falls on a day that is not a Business Day, the payment otherwise payable on such day will
be due and payable on the next succeeding Business Day, and no interest will accrue thereon for the period from and after such Interest
Payment Date, Redemption Date, including pursuant to a Collateral Asset Sale or Event of Loss, Change of Control Payment Date or Stated
Maturity, as the case may be, through such next succeeding Business Day.
Section 1.14. Language
of Notices, Etc.
Any request, demand, authorization,
direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
Section 1.15. No
Personal Liability
THE AMENDED AND RESTATED
DECLARATION OF TRUST ESTABLISHING DIVERSIFIED HEALTHCARE TRUST (FORMERLY KNOWN AS SENIOR HOUSING PROPERTIES TRUST), DATED SEPTEMBER 20,
1999, AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE,
OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF DIVERSIFIED HEALTHCARE TRUST SHALL BE HELD TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY,
FOR ANY OBLIGATION OF, OR CLAIM AGAINST, DIVERSIFIED HEALTHCARE TRUST. ALL PERSONS DEALING WITH DIVERSIFIED HEALTHCARE TRUST IN ANY WAY
SHALL LOOK ONLY TO THE ASSETS OF DIVERSIFIED HEALTHCARE TRUST FOR THE PAYMENT OF ANY SUM OR THE PERFORMANCE OF ANY OBLIGATION.
Section 1.16. Notices.
Notices to the Company or
any Subsidiary Guarantor shall be directed to it at Two Newton Place, 255 Washington Street, Suite 300, Newton, Massachusetts 02458-1634,
fax number (617) 796-8349, Attention: President; notices to the Trustee shall be directed to it at One Federal Street, 3rd Floor, Boston,
Massachusetts 02110, email: david.doucette@usbank.com, fax number (617) 603-6683, Attention: Corporate Trust Department, re: Diversified
Healthcare Trust Senior Secured Notes due 2026, or as to any party, at such other address as shall be designated by such party in a written
notice to the other parties. All notices and communications (other than those sent to Holders of the Notes ) shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five (5) 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); when receipt is acknowledged, if sent by e-mail or facsimile; and the next Business Day after timely delivery to the
courier, if sent by overnight air courier guaranteeing next day delivery.
Section 1.17. Counterparts.
This Indenture may be executed
in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The words
“execution,” “signed,” “signature,” and words of like import in this Indenture or in any other certificate,
agreement or document related to this Indenture or the Notes shall include images of manually executed signatures transmitted by facsimile
or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic
signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including,
without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall
be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based recordkeeping system
to the fullest extent permitted by applicable law, including the ESIGN Act of 2000, the New York State Electronic Signatures and Records
Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the
UCC. The Trustee shall have the right to accept and act upon any notice, instruction, or other communication, including any funds transfer
instruction, (each, a “Notice”) received pursuant to this Indenture by electronic transmission (including by e-mail,
facsimile transmission, web portal or other electronic methods) and shall not have any duty to confirm that the person sending such Notice
is, in fact, a person authorized to do so. Electronic signatures believed by the Trustee to comply with the ESIGN Act of 2000 or other
applicable law (including electronic images of handwritten signatures and digital signatures provided by DocuSign, Orbit, Adobe Sign
or any other digital signature provider identified by any other party hereto and acceptable to the Trustee) shall be deemed original
signatures for all purposes. Each other party to this Indenture assumes all risks arising out of the use of electronic signatures and
electronic methods to send Notices to the Trustee, including without limitation the risk of the Trustee acting on an unauthorized Notice
and the risk of interception or misuse by third parties. Notwithstanding the foregoing, the Trustee may in any instance and in its sole
discretion require that a Notice in the form of an original document bearing a manual signature be delivered to the Trustee in lieu of,
or in addition to, any such electronic Notice.
ARTICLE Two
Maturity
Extension; EXTENSION PERIOD INTEREST RATE
Section 2.01. Maturity
Extension
(a) The
Company, at its option and in its sole discretion, and subject to compliance with Section 10.07, may elect to extend the Stated
Maturity of the Notes from January 15, 2026 to January 15, 2027 (a “Maturity Extension”) by providing Holders
of Notes with notice of such election (an “Extension Notice”) in accordance with Section 2.01(b). As a condition
to the Maturity Extension, the Company shall deposit with the Trustee or with a Paying Agent for distribution to the Holders as of such
date on a pro rata basis, on or before 11:00 a.m. Eastern Time on January 15, 2026, a one-time cash extension fee equal to
0.50% of the principal amount of Notes (the “Extension Fee”) subject to the Maturity Extension.
(b) If
the Company elects to exercise the Maturity Extension, the Company will, no more than 180 days and no less than 15 days prior to January 15,
2026, send to each Holder of Notes an Extension Notice in the manner provided in Section 1.06. Any Extension Notice shall state
that:
(i) the
Company has elected to extend the Stated Maturity of the Notes to January 15, 2027 in accordance with this Section 2.01;
(ii) the
principal amount of Notes to which the Maturity Extension applies (which, if exercised for a portion of the Notes, shall be done on a
pro rata basis); and
(iii) such
further information as the Company deems necessary.
An Extension Notice shall
be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.
(c) If
the Company validly exercises the Maturity Extension and pays the Extension Fee in accordance with this Section 2.01, the Stated
Maturity of the Notes will, automatically and without further action on the part of the Company, the Trustee or the Holders, become January 15,
2027.
Section 2.02. Extension
Period Interest
(a) During
the Extension Period, interest on the Notes extended in accordance with Section 2.01 shall accrue from and including January 15,
2026 (the “Extension Date”) to, but excluding, January 15, 2027, and shall be payable in cash at an initial rate
equal to 11.25% per annum, which interest rate shall increase by fifty (50) basis points to 11.75% per annum from and including April 15,
2026, and shall continue to increase by fifty (50) basis points every 90 days thereafter that the Notes remain outstanding during the
Extension Period.
(b) During
the Extension Period, cash interest on the Notes will be payable semi-annually in arrears on July 15, 2026 and January 15,
2027, commencing July 15, 2026 (each of which shall be an “Interest Payment Date”), to the Persons in whose names
the Notes are registered in the Security Register at the close of business on the Record Date for such cash interest, which shall be
July 1 or January 1 (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date.
(c) During
the Extension Period, interest on the Notes will be calculated on the basis of the actual number of days in each Interest Period, assuming
a 360-day year.
(d) If
any scheduled Interest Payment Date (other than the Stated Maturity), is not a Business Day, such Interest Payment Date will be postponed
to the next day that is a Business Day; provided that if that Business Day falls in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding Business Day. If any such Interest Payment Date (other than the Stated Maturity), is postponed
or brought forward as described above, the payment of interest due on such postponed or brought forward Interest Payment Date will include
interest accrued to but excluding such postponed or brought forward Interest Payment Date.
(e) If
the applicable Stated Maturity or date of redemption or repayment of the Notes is not a Business Day, the Company may pay interest and
principal on the next succeeding Business Day, but interest on that payment will not accrue during the period from and after the Stated
Maturity or date of redemption or repayment of the Notes.
ARTICLE Three
THE
NOTES
Section 3.01. Form and
Dating
Provisions relating to the
Notes are set forth in Appendix A, which is hereby incorporated in and expressly made a part of this Indenture. The Notes and the Trustee’s
(or the Authenticating Agent’s) certificate of authentication shall be substantially in the form of Exhibit A attached hereto,
with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture. The Notes
may have notations, legends or endorsements required by law, the rules of any securities exchange agreements to which the Company
is subject, if any, or usage; provided that any such notation, legend or endorsement is in form reasonably acceptable to the Company.
The Company shall approve the form of the Notes. Each Note shall be dated the date of its authentication. The terms and provisions contained
in the form of the Notes shall constitute and are hereby expressly made a part of this Indenture.
Section 3.02. Denominations
The Notes shall be issued
only in registered form without coupons and only in minimum denominations of $2,000 in principal amount and any integral multiples of
$1,000 in excess thereof.
Section 3.03. Execution,
Authentication, Delivery and Dating
The Notes shall be executed
on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its President, one of its Vice Presidents or its
Treasurer. The signature of any of these officers on the Notes may be manual, electronic (including DocuSign or other electronic platform)
or facsimile.
Notes bearing the manual,
electronic (including DocuSign or other electronic platform) or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.
The Company shall execute
and, upon receipt of a Company Order, the Trustee shall authenticate (whether itself or via the Authenticating Agent), which such authentication
may be by manual, electronic (including DocuSign or other electronic platform) or facsimile signature, Notes, on the date hereof, for
original issue up to an aggregate principal amount of $940,534,000.
The Trustee may appoint an
Authenticating Agent reasonably acceptable to the Company to authenticate the Notes. Unless limited by the terms of such appointment,
any such Authenticating Agent may authenticate Notes whenever the Trustee may do so. Each reference in this Indenture to authentication
by the Trustee includes authentication by any such agent. An Authenticating Agent has the same rights as any Security Registrar, co-Security
Registrar, Paying Agent or transfer agent to deal with the Company or an Affiliate of the Company.
No Note shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Note shall be
conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. Notwithstanding the foregoing,
if any Note shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver
such Note to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Note shall be deemed
never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary
Notes
Pending the preparation of
definitive Notes, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Notes which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of
the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Notes may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued,
the Company will cause definitive Notes to be prepared without unreasonable delay. After the preparation of definitive Notes, the temporary
Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency of the Company in a Place
of Payment, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Notes, of any authorized denominations and
of like tenor and aggregate principal amount. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits
under this Indenture.
Section 3.05. Registration,
Registration of Transfer and Exchange
(a) The
Company shall cause to be kept at an office or agency to be maintained by the Company in accordance with Section 10.02 a register
(being the combined register of the Security Registrar and all transfer agents designated pursuant to Section 10.02 for the purpose
of registration of transfer of Notes and sometimes collectively referred to as the “Security Register”) in which,
subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Notes and the registration
of transfers of Notes. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Notes and
transfers of Notes as herein provided.
(b) The
Notes shall be issued in registered form and shall be transferable only upon the surrender of a Note for registration of transfer and
in compliance with Appendix A.
(c) Subject
to Section 3.05(b), upon surrender for registration of transfer of any Note at the office or agency of the Company maintained pursuant
to Section 10.02 for such purpose in a Place of Payment for that Note, the Company shall execute, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or more new Notes, of any authorized denominations and of like
tenor and aggregate principal amount.
(d) All
Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Notes surrendered upon such registration of transfer or exchange.
(e) Every
Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or the attorney of such Holder duly authorized in writing.
(f) No
service charge shall be made for any registration of transfer or exchange of Notes, but the Company 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 Notes,
other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
(g) If
the Notes are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Notes
during a period beginning at the opening of business 15 days before any selection of Notes to be redeemed and ending at the close of
business on the day of the mailing of the relevant notice of redemption, or (B) to register the transfer of or exchange any Note
so selected for redemption, in whole or in part, except the unredeemed portion of any Note being redeemed in part.
Section 3.06. Mutilated,
Destroyed, Lost and Stolen Notes
If any mutilated Note is
surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Note
of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Note and (b) 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 Company or the Trustee that such Note has been acquired by a bona fide purchaser, the Company shall execute and the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Note, a new Note of like tenor and principal amount
and bearing a number not contemporaneously outstanding.
Notwithstanding the provisions
of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Note, pay such Note.
Upon the issuance of any
new Note under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant
to this Section in lieu of any destroyed, lost or stolen Note shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Notes 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 Notes.
Section 3.07. Payment
of Interest; Interest Rights Preserved
Solely in the event of a
Maturity Extension, cash interest on any Note on or after the Extension Date which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered
at the close of business on the Record Date for such interest.
Solely in the event of a
Maturity Extension in accordance with Section 2.01 and solely during the Extension Period, if any, the Company shall pay interest
(including post-petition interest in any proceeding under any Bankruptcy Law that occurs after a Maturity Extension) on overdue principal
at a rate equal to the then applicable interest rate on the Notes to the extent lawful; the Company shall pay interest (including post-petition
interest in any proceeding under any Bankruptcy Law that occurs after a Maturity Extension) on overdue installments of interest (without
regard to any applicable grace period) at the same rate to the extent lawful.
During the Extension Period,
any cash interest on any Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein
called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Record Date by virtue
of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause
(a) or (b) below:
(a) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or respective Predecessor Notes)
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 Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on the
Notes and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Section 3.07 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 Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder in the manner set forth in Section 1.06,
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 so mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or respective Predecessor
Notes) 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
Company may make payment of any Defaulted Interest on the Notes in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Notes may be listed, and upon such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant to this Section 3.07, such manner of payment shall be deemed
practicable by the Trustee.
Subject to the foregoing
provisions of this Section 3.07, each Note delivered under this Indenture upon registration of transfer of or in exchange for or
in lieu of any other Note shall, on or after the Extension Date, carry the rights to interest accrued and unpaid, and to accrue, which
were carried by such other Note.
Section 3.08. Persons
Deemed Owners
Prior to due presentment
of a Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in
whose name such Note is registered as the owner of such Note for the purpose of receiving payment of principal or Accreted Value of (and
premium, if any), as applicable, and, on or after the Extension Date, any accrued and unpaid cash interest (subject to Section 3.07),
if any, on, such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Section 3.09. Cancellation
All Notes surrendered for
payment, redemption, registration of transfer or exchange shall, if surrendered to any Person other than the Trustee, be delivered to
the Trustee and shall be promptly cancelled by it. The Company may at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Notes previously authenticated hereunder which the Company has
not issued and sold, and all Notes so delivered shall be promptly cancelled by the Trustee. No Notes shall be authenticated in lieu of
or in exchange for any Notes cancelled as provided in this Section 3.09, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of as directed by a Company Order or, in the absence of such a Company Order, in the Trustee’s
customary manner, which manner shall be communicated in writing to the Company.
Section 3.10. Currency
The principal of each Note
payable at its Maturity shall be paid against presentation and surrender thereof at the Corporate Trust Office, in such coin or currency
of the United States of America as at the time of payment is legal tender for the payment of public or private debts.
Section 3.11. CUSIP
Numbers
The Company, in issuing the
Notes, may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use such “CUSIP” numbers
in notices of redemption 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 Notes or as contained in any notice of a redemption and that reliance
may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Company will notify the Trustee of any change in “CUSIP” numbers.
ARTICLE Four
Satisfaction
and Discharge
Section 4.01. Satisfaction
and Discharge of Indenture
This Indenture shall upon
Company Request cease to be of further effect (except as to any surviving rights of registration of transfer or exchange of Notes herein
expressly provided for), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction
and discharge of this Indenture, when
(a) either
(i) all
Notes theretofore authenticated and delivered (other than (A) Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 3.06 and (B) Notes for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03)
have been delivered to the Trustee for cancellation; or
(ii) all
such Notes not theretofore delivered to the Trustee for cancellation
(A) have
become due and payable, or
(B) will
become due and payable at their Stated Maturity within one year, or
(C) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (A), (B) or
(C) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient
to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Trustee for cancellation, for principal or
Accreted Value of (and premium, if any), as applicable, and, on or after the Extension Date, any accrued and unpaid cash interest, if
any, on, such Notes to the date of such deposit (in the case of Notes which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be; provided that with respect to a Redemption Date, if all or a portion of the Redemption
Price is based on or consists of a redemption premium that is required to be calculated based on a treasury rate or other floating or
adjustable rate a specified number of days prior to such Redemption Date, the Redemption Price deposited shall be sufficient for purposes
of this paragraph to the extent that the Redemption Price so deposited is calculated using an amount equal to such premium computed using
such treasury rate or other floating or adjustable rate as of such specified number of days preceding the date of such deposit;
(b) the
Company has paid or caused to be paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Trustee
to any Authenticating Agent under Section 6.14 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 4.02 and the last paragraph of Section 10.03
shall survive such satisfaction and discharge.
Section 4.02. Application
of Trust Money
Subject to the provisions
of the last paragraph of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of
the principal or Accreted Value of (and premium, if any), as applicable, and, on or after the Extension Date, any cash interest on, such
Notes for whose payment such money has been deposited with the Trustee.
ARTICLE Five
Remedies
Section 5.01. Events
of Default
“Event of Default,”
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 the principal or Accreted Value of (and premium, if any), as applicable, on the Notes at the Stated Maturity, upon
redemption or otherwise (including, a default in making a payment to purchase Notes pursuant to a Change of Control Offer, Collateral
Asset Sale Redemption or an Event of Loss Redemption) on the date specified for payment in the applicable offer or notice; or
(b) solely
in the event of a Maturity Extension, default in the payment of any interest on the Notes when it becomes due and payable, and continuance
of such default for a period of 30 days; or
(c) [reserved];
or
(d) (i) default
in the performance of, or breach of, any covenant of the Company or any Subsidiary Guarantor in this Indenture (other than Section 10.13),
and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the Outstanding Notes
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 (ii) default in the performance of, or breach of, Section 10.13, and continuance of such default
or breach for a period of 45 days; or
(e) the
Company or a Significant Subsidiary, pursuant to or within the meaning of any Bankruptcy Law (i) commences a voluntary case, (ii) consents
to the entry of an order for relief against it in an involuntary case, or (iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property; or
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (i) is for relief against the Company or
a Significant Subsidiary in an involuntary case, (ii) appoints a Custodian of the Company or such Significant Subsidiary or for
all or substantially all of its property, or (iii) orders the liquidation of the Company or such Significant Subsidiary, and the
order or decree remains unstayed and in effect for 90 days; or
(g) default
under any bond, debenture, note or other evidence of indebtedness for borrowed money of the Company, or under any mortgage, indenture
or other instrument of the Company under which there may be issued or by which there may be secured any indebtedness for borrowed money
of the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible
or liable as obligor or guarantor), whether such indebtedness now exists or shall hereafter be created, which default shall constitute
a failure to pay an aggregate principal amount exceeding $50,000,000 of such indebtedness when due and payable after the expiration of
any applicable grace period with respect thereto and shall have resulted in such indebtedness in an aggregate principal amount exceeding
$50,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without
such indebtedness having been discharged, or such acceleration having been rescinded or annulled, within a period of 10 days after there
shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders
of at least 25% in aggregate principal amount of the Outstanding Notes, a written notice specifying such default and requiring the Company
to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a
“Notice of Default” under this Indenture; or
(h) any
Subsidiary Guarantee of a Subsidiary Guarantor that is a Significant Subsidiary ceases to be in full force and effect (except as contemplated
by the terms of this Indenture) or is declared null and void in a judicial proceeding or any Subsidiary Guarantor that is a Significant
Subsidiary or group of Subsidiary Guarantors that taken together would constitute a Significant Subsidiary denies or disaffirms its or
their, as the case may be, obligations under this Indenture or its or their Subsidiary Guarantees, as the case may be; or
(i) unless
such Liens have been released in accordance with the provisions of this Indenture or the Security Documents with respect to such Liens,
the Liens in favor of the Holders with respect to Collateral having a Fair Market Value in excess of $25,000,000 in the aggregate cease
to be valid or enforceable and such default continues for 30 days, or the Company shall assert or any Collateral Guarantor shall assert,
in any pleading in any court of competent jurisdiction, that security interests with respect to Collateral having a Fair Market Value
in excess of $25,000,000 in the aggregate is invalid or unenforceable (except as contemplated by the terms of this Indenture or the applicable
Security Documents) and, in the case of any Collateral Guarantor, the Company shall fail to cause such Collateral Guarantor to rescind
such assertions within 30 days after the Company has actual knowledge of such assertions; or
(j) failure
by the Company or any Collateral Guarantor to comply for 60 days after notice or such longer period as may be provided in the applicable
Security Documents with its other agreements contained in such Security Documents, in each case, except for a failure that would not
be material to the Holders and would not materially affect the value of the Collateral taken as a whole.
Section 5.02. Acceleration
of Maturity; Rescission and Annulment
If
an Event of Default (other than an Event of Default specified in Section 5.01(e) or 5.01(f)) occurs and is continuing, then
in every such case the Trustee or the Holders of not less than a majority of the principal amount of the Outstanding Notes may declare
the Accreted Value, or in the case of an Event of Default specified in Section 5.01(a) or 5.01(b), the Principal Amount
At Maturity, of the Notes and, in the case of any such Event of Default occurring during the Extension Period, accrued and unpaid interest,
if any, to be due and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any
such declaration such Accreted Value or Principal Amount At Maturity, as applicable, shall become immediately due and payable. If an
Event of Default specified in clause (e) or (f) of Section 5.01 occurs, the Principal Amount At Maturity of the Notes
and, in the case of any such Event of Default occurring during the Extension Period, accrued and unpaid interest, if any, shall automatically,
and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
At any time after such a
declaration of acceleration with respect to the Notes 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
Notes, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if
(a) the
Company has paid or deposited with the Trustee a sum sufficient to pay
(i) the
principal or Accreted Value of (and premium, if any), as applicable, the Notes which have become due otherwise than by such declaration
of acceleration,
(ii) on
or after the Extension Date, to the extent that payment of such interest is lawful, all overdue cash interest on all Notes, and
(iii) 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, other than the non-payment of the principal or Accreted Value of, as applicable, the Notes which have become due solely
by such declaration of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall
affect any subsequent default or impair any right consequent thereon.
If a default for a failure
to report or failure to deliver a required certificate in connection with another default (such other default, the “Initial
Default”) occurs, then at the time such Initial Default is cured, the default for a failure to report or failure to deliver
a required certificate in connection with the Initial Default will also be cured without any further action and any default or Event
of Default for the failure to comply with the time periods prescribed under Section 10.10 or otherwise to deliver any notice or
certificate pursuant to any other provision of this Indenture shall be deemed to be cured upon the delivery of any such report required
by Section 10.10 or such notice or certificate, as applicable, even though such delivery is not within the prescribed period specified
in this Indenture.
Without limiting the generality
of the foregoing, the Company and each Subsidiary Guarantor expressly agree and acknowledge (to the fullest extent it may lawfully do
so) that if the Notes are accelerated or otherwise become due prior to their Stated Maturity, in each case, solely in respect of any
Event of Default specified in Section 5.01(e) or 5.01(f), the amount equal to the difference between the Accreted Value at
the time of such Event of Default and the Principal Amount At Maturity of the Notes (such difference, the “Premium”)
(v) shall be payable by the Company or the Subsidiary Guarantors (as applicable) to the Trustee on behalf of the Holders, (w) shall
constitute reasonable and proportionate compensation for any lost profits or damages of the Holders caused by such Events of Default,
(x) is the product of an arm’s length transaction resulting from good faith negotiations between sophisticated parties having
received independent legal advice, (y) is payable notwithstanding the then prevailing market conditions at the time payment of the
Premium is made and (z) shall be payable by the Company or the Subsidiary Guarantors (as applicable), notwithstanding any acceleration
of the Company’s or the Subsidiary Guarantor’s obligations hereunder following such an Event of Default specified in Section 5.01(e) or
5.01(f). The Company and each Subsidiary Guarantor hereby expressly agree (to the fullest extent it may lawfully do so) that with respect
to the Premium payable under the terms of this Indenture: (i) payment of the Premium hereunder constitutes liquidated damages, is
not a penalty, punishment, “unmatured interest” as that term is used in section 502(b) of the Bankruptcy Code (or otherwise)
or an otherwise unenforceable or invalid obligation, and is a material inducement to each Holder to hold the Notes, (ii) the actual
amount of damages to the Holders or profits lost by the Holders as a result of repayment of Accreted Value hereunder would be impracticable
and extremely difficult to ascertain, (iii) the amount of the Premium payable hereunder is provided by mutual agreement of the Company
and the Holders, as a reasonable estimation and calculation of the damages that the Holders would incur upon the occurrence of an applicable
repayment of Accreted Value hereunder, and the Premium payable hereunder is reasonable in light of the circumstances, (iv) there
has been a course of conduct between the Holders and the Company and the Subsidiary Guarantors giving specific consideration in this
transaction for such agreement to pay the Premium and (v) the Company and each Subsidiary Guarantor shall be estopped hereafter
from claiming differently than as agreed to in this paragraph. Without limiting the generality of the foregoing, the Premium shall be
fully earned, and automatically and immediately due and payable, on the date on which such Premium is required to be made and shall constitute
part of the Notes Obligations secured by the Collateral as of such date. The Premium shall be non-refundable when so paid. The Premium
shall also be automatically and immediately due and payable if the Notes Obligations are satisfied or released by foreclosure (whether
by power of judicial proceeding or otherwise), deed in lieu of foreclosure or by any other similar means, or if the Notes Obligations
are reinstated pursuant to section 1124 of the Bankruptcy Code or similar provisions under Bankruptcy Laws. The obligation to pay the
Premium will not be subject to counterclaim or setoff for, or otherwise be affected by, any claim or dispute the Company or any Subsidiary
Guarantor may have (other than a claim of payment). In the event that the Premium is determined not to be due and payable by order of
any court of competent jurisdiction, including, without limitation, by operation of debtor relief laws, despite becoming due and payable
hereunder, such Premium shall nonetheless constitute Notes Obligations under this Indenture and the Notes for all purposes hereunder
and thereunder. Each Holder has agreed to hold the Notes in reliance of each such agreement and acknowledgement by the Company and the
Subsidiary Guarantors. THE COMPANY AND EACH SUBSIDIARY GUARANTOR EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO)
THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE FOREGOING PREMIUM IN
CONNECTION WITH ANY SUCH ACCELERATION.
Section 5.03. Collection
of Indebtedness and Suits for Enforcement by Trustee
The Company covenants that
if
(a) default
is made in the payment of, on or after the Extension Date, any cash interest on any Note when such cash interest, as the case may be,
becomes due and payable and such default continues for a period of 30 days, or
(b) default
is made in the payment of principal or Accreted Value of (and premium, if any), as applicable, the Notes at the Maturity thereof, the
Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Notes, the whole amount then due and payable
on such Notes for the principal or Accreted Value, as applicable, of (and premium, if any), and, on or after the Extension Date, any
cash interest on, such Notes, and, in addition thereto, 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.
If an Event of Default with
respect to the Notes occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Notes by such appropriate judicial proceedings as the Trustee shall deem reasonably necessary to protect and enforce
any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee
May File Proofs of Claim
In case of any judicial proceeding
relative to the Company (or any other obligor upon the Notes), its property or its creditors, the Trustee shall be entitled and empowered,
by intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to collect and receive
any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver,
assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding 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 it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture
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 Notes or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar
committee.
Section 5.05. Trustee
May Enforce Claims Without Possession of Notes
All rights of action and
claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or
the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its
own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Notes in
respect of which such judgment has been recovered.
Section 5.06. Application
of Money Collected
Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case
of the distribution of such money on account of principal or Accreted Value, as applicable, or any premium or, on or after the Extension
Date, cash interest, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of
all amounts due the Trustee under Section 6.07;
SECOND: To the payment of
the amounts then due and unpaid on the Notes for the principal or Accreted Value of (and premium, if any), as applicable, and, on or
after the Extension Date, any cash interest on, the Notes in respect of which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal or Accreted
Value of (and premium, if any), as applicable, and, on or after the Extension Date, any cash interest, respectively; and
THIRD: To the Company.
Section 5.07. Limitation
on Suits
No Holder shall have any
right to institute any proceeding, judicial or otherwise, with respect to this Indenture or the Notes, or for the appointment of a receiver
or trustee, or for any other remedy under this Indenture or the Notes, unless
(a) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Notes;
(b) the
Holders of not less than a majority in principal amount of the Outstanding Notes shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee reasonable indemnity against the costs, expenses and liabilities to be incurred in compliance
with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and
(e) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Notes;
it being understood and intended that no one
or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture
or any Note to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture or any Note, except in the manner herein or therein provided
and for the equal and ratable benefit of all of such Holders.
Section 5.08. Unconditional
Right of Holders to Receive Payment
Notwithstanding any other
provision in this Indenture, the Holder of any Note shall have the right, which is absolute and unconditional, to receive payment of
the principal or Accreted Value of (and premium, if any), as applicable, and, on or after the Extension Date and subject to Section 3.07,
any cash interest on, such Note on the respective Stated Maturities expressed in such Note (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such
Holder.
Section 5.09. 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, subject to any determination
in such proceeding, the Company, the Trustee and the Holders shall 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. Rights
and Remedies Cumulative
Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section 3.06,
no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11. Delay
or Omission Not Waiver
No delay or omission of the
Trustee or of any Holder of any Notes to exercise any right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or
by the Holders, as the case may be.
Section 5.12. Control
by Holders
The Holders of a majority
in principal amount of the Outstanding Notes shall have the right to 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, with respect to the Notes, provided
that
(a) such
direction shall not be in conflict with any rule of law or with this Indenture, and
(b) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
Section 5.13. Waiver
of Past Defaults
The Holders of not less than
a majority in principal amount of the Outstanding Notes may on behalf of the Holders of all the Notes waive any past default hereunder
with respect to such Notes and its consequences, except a default
(a) in
the payment of the principal or Accreted Value of (and premium, if any), as applicable, and, on or after the Extension Date, any cash
interest on, the Notes, or
(b) in
respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of each Holder
of Outstanding Notes affected.
Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14. 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 may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against
any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company.
Section 5.15. Waiver
of Usury, Stay or Extension Laws
The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will 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.
ARTICLE Six
The
Trustee
Section 6.01. Certain
Duties and Responsibilities
The duties and responsibilities
of the Trustee shall be as provided by the Trust Indenture Act. Notwithstanding the foregoing, 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, if it shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to it. 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.
Section 6.02. Notice
of Defaults
If a default occurs hereunder
with respect to the Notes, the Trustee shall give the Holders of Notes notice of such default as and to the extent provided by the Trust
Indenture Act; provided, however, that in the case of any default of the character specified in clause (d) of
Section 5.01 with respect to the Notes, no such notice to Holders shall be given until at least 30 days after the occurrence thereof.
For the purpose of this Section, the term “default” means any event which is, or after notice or lapse of time or
both would become, an Event of Default with respect to the Notes.
Section 6.03. Certain
Rights of Trustee
Subject to the provisions of Section 6.01:
(a) the
Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order, and any resolution
of the Board shall 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, rely upon an Officer’s Certificate;
(d) the
Trustee may consult with counsel of its own selection and the written 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 pursuant to this Indenture, unless such Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which 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, other evidence of indebtedness or other paper or
document, 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 Company, personally or by agent or attorney;
(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
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;
(i) the
Trustee shall not 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 of any event which is in fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Notes and this Indenture; and
(j) the
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and the Person
employed to act hereunder.
Section 6.04. Not
Responsible for Recitals or Issuance of Notes
The recitals contained herein
and in the Notes, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Notes. Neither the Trustee nor any Authenticating Agent shall be accountable
for the use or application by the Company of Notes or the proceeds thereof.
Section 6.05. May Hold
Notes
The Trustee, any Authenticating
Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become
the owner or pledgee of Notes and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06. Money
Held in Trust
Money held by the Trustee
in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability
for interest on any money received by it hereunder except as otherwise agreed with the Company.
Section 6.07. Compensation
and Reimbursement
The Company agrees
(a) to
pay to the Trustee from time to time reasonable compensation 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) except
as otherwise expressly provided herein, 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 may be attributable to its negligence
or bad faith; and
(c) to
indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs
and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or
duties hereunder.
Section 6.08. 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. To the extent
permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture
with respect to the Notes and any other indentures of the Company.
Section 6.09. Corporate
Trustee Required; Eligibility
There shall at all times
be one (and only one) Trustee hereunder with respect to the Notes, which may be Trustee hereunder for the Notes. Each Trustee shall be
a Person that is eligible pursuant to the Trust Indenture Act to act as such, and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining
authority, then for the purposes of this Section and to the extent permitted by the Trust Indenture Act, the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee with respect to the Notes 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.
Section 6.10. Resignation
and Removal; Appointment of Successor
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 in accordance with the applicable requirements of Section 6.11.
The Trustee may resign at
any time with respect to the Notes by giving written notice thereof to the Company. 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 any court of competent jurisdiction for the appointment of a successor Trustee with respect to the
Notes.
The Trustee may be removed
at any time with respect to the Notes by Act of the Holders of a majority in principal amount of the Outstanding Notes, delivered to
the Trustee and to the Company.
If at any time:
(i) the
Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Note for at least six months, or
(ii) the
Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or
by any such Holder, or
(iii) the
Trustee shall become incapable of acting or shall be adjudged 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, (A) the Company
by a Board Resolution may remove the Trustee with respect to all Notes, or (B) subject to Section 5.14, any Holder who has
been a bona fide Holder of a Note for at least six months may, on behalf of such Holder and all others similarly situated, petition any
court of competent jurisdiction for the removal of the Trustee with respect to all Notes and the appointment of a successor Trustee or
Trustees.
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 Notes,
the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Notes (it being understood
that any such successor Trustee may be appointed with respect to the Notes and that at any time there shall be only one Trustee with
respect to the Notes) 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 Notes shall be appointed by Act of
the Holders of a majority in principal amount of the Outstanding Notes delivered to the Company 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 Notes and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Notes shall have been so appointed by the Company or the Holders of Notes and accepted appointment
in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Note for at least six months may, on behalf
of such Holder and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee
with respect to the Notes.
The Company shall give notice
of each resignation and each removal of the Trustee with respect to the Notes and each appointment of a successor Trustee with respect
to the Notes to all Holders of Notes in the manner provided in Section 1.06. Each notice shall include the name of the successor
Trustee with respect to the Notes and the address of its Corporate Trust Office.
Section 6.11. Acceptance
of Appointment by Successor
In case of the appointment
hereunder of a successor Trustee with respect to all Notes, every such successor Trustee so appointed shall execute, acknowledge and
deliver to the Company 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 Company 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.
In case of the appointment
hereunder of a successor Trustee with respect to the Notes, the Company, the retiring Trustee and such successor Trustee with respect
to the Notes shall execute and deliver an indenture supplemental hereto wherein such successor Trustee shall accept such appointment
and which 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 Notes 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
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 with respect to the Notes to which the appointment of such successor Trustee relates; but, on request
of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder with respect to the Notes to which the appointment of such successor Trustee
relates.
Upon request of any such
successor Trustee, the Company 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 the first or second preceding paragraph, as the case may be.
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 the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified
and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto.
In case any Notes 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 Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes.
Section 6.13. Preferential
Collection of Claims Against Company
If and when the Trustee shall
be or become a creditor of the Company (or any other obligor upon the Notes), the Trustee shall be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against the Company (or any such other obligor). For purposes of Section 311(b)(4) and
(6) of the Trust Indenture Act:
(a) “cash
transaction” means any transaction in which full payment for goods or securities sold is made within seven days after delivery
of the goods or securities in currency or in checks or other orders drawn upon banks or bankers and payable upon demand; and
(b) “self-liquidating
paper” means any draft, bill of exchange, acceptance or obligation which is made, drawn, negotiated or incurred by the Company
for the purpose of financing the purchase, processing, manufacturing, shipment, storage or sale of goods, wares or merchandise and which
is secured by documents evidencing title to, possession of, or a lien upon, the goods, wares or merchandise or the receivables or proceeds
arising from the sale of the goods, wares or merchandise previously constituting the security, provided the security is received
by the Trustee simultaneously with the creation of the creditor relationship with the Company arising from the making, drawing, negotiating
or incurring of the draft, bill of exchange, acceptance or obligation.
Section 6.14. Appointment
of Authenticating Agent
The Trustee may appoint an
Authenticating Agent or Agents with respect to the Notes which shall be authorized to act on behalf of the Trustee to authenticate Notes
issued upon original issue and upon exchange, registration of transfer or partial redemption thereof or pursuant to Section 3.06,
and Notes 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. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible
Officer of the Trustee, and a copy of such instrument shall be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Notes 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 Company 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, 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 Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company.
Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company
and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Notes with respect to which such
Authenticating Agent will serve. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested
with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its services under this Section, and the Trustee shall be
entitled to be reimbursed for such payments, subject to the provisions of Section 6.07.
If an appointment with respect
to the Notes is made pursuant to this Section, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of
authentication, an alternative certificate of authentication in the following form:
This is one of the Notes
referred to in the within-mentioned Indenture.
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As Trustee |
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As Authenticating Agent |
If all of the Notes may not
be originally issued at one time, and if the Trustee does not have an office capable of authenticating Notes upon original issuance located
in a Place of Payment where the Company wishes to have Notes authenticated upon original issuance, the Trustee, if so requested by the
Company in writing (which writing need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel), shall
appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the Company
with respect to such Notes.
Section 6.15. Rules by
Trustee
The Trustee may make reasonable
rules for any Act of Holders or a meeting of Holders of Notes.
ARTICLE Seven
Holders’
Lists and Reports by Trustee and Company
Section 7.01. Company
to Furnish Trustee Names and Addresses of Holders
The Company will furnish
or cause to be furnished to the Trustee
(a) semi-annually,
not later than 15 days after each Record Date or in the case of any Notes on which semi-annual interest is not payable, not more than
15 days after such semi-annual dates specified by the Trustee (which shall initially be the Semi-Annual Accrual Dates), a list, in such
form as the Trustee may reasonably require, of the names and addresses of the Holders of Notes as of the Record Date or such semi-annual
date, as the case may be, and
(b) at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 7.02. Preservation
of Information; Communications to Holders
The Trustee shall preserve,
in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
The rights of Holders to
communicate with other Holders with respect to their rights under this Indenture or under the Notes, and the corresponding rights and
privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Notes, by
receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the
Trust Indenture Act.
Section 7.03. Reports
by Trustee
The Trustee shall transmit
to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant thereto.
A copy of each such report
shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Notes are listed,
with the Commission and with the Company. The Company will notify the Trustee when any Notes are listed on or delisted from any stock
exchange.
ARTICLE Eight
Consolidation,
Merger, Conveyance, Transfer or Lease
Section 8.01. Company
May Consolidate, Etc., Only on Certain Terms
The Company shall not consolidate
with or merge into any other Person or convey, transfer or lease all or substantially all of the properties and assets of the Company
and its Subsidiaries, taken as a whole, to any Person (other than a direct or indirect wholly owned subsidiary of the Company), and the
Company shall not permit any Person (other than a direct or indirect wholly owned subsidiary of the Company) to consolidate with or merge
into the Company, unless:
(a) The
Company is the surviving corporation (as defined herein) or, in case the Company shall consolidate with or merge into another Person
or convey, transfer or lease all or substantially all of its properties and assets to any Person, the Person formed by such consolidation
or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, all or substantially all
of the properties and assets of the Company shall be a corporation (as so defined) organized and validly existing under the laws of the
United States of America, any State thereof or the District of Columbia and shall expressly assume, by a supplemental indenture or other
documents or instruments as may be executed and delivered to the Trustee and Collateral Agent, in form satisfactory to the Trustee and
Collateral Agent, the due and punctual payment of the principal or Accreted Value of, as applicable, and any premium and interest on
all the Notes and the performance or observance of every covenant of this Indenture and all obligations under the Security Documents
on the part of the Company to be performed or observed;
(b) immediately
after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing;
and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture or other document or instrument is required in connection with
such transaction, such supplemental indenture and any other documents or instruments as may be executed and delivered to the Trustee
and Collateral Agent comply with this Article and that all conditions precedent herein provided for relating to such transaction
have been complied with.
Upon any consolidation of
the Company with, or merger of the Company into, any other Person or any conveyance, transfer or lease all or substantially all of the
properties and assets of the Company and its Subsidiaries in accordance with this Section 8.01, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Notes.
Section 8.02. Subsidiary
Guarantor May Consolidate, Etc., Only on Certain Terms; Successor Substituted.
A Subsidiary Guarantor may
not consolidate with or merge into any other Person or convey, transfer or lease all or substantially all of its properties and assets
to any other Person (other than the Company or another Subsidiary Guarantor), and a Subsidiary Guarantor may not permit any other Person
(other than the Company or another Subsidiary Guarantor) to consolidate with or merge into it, unless:
(a) either
(1) the Subsidiary Guarantor is the surviving entity or (2) the Person formed by or surviving any such consolidation or merger
(if other than the Subsidiary Guarantor) or to which such conveyance, transfer or lease has been made is an entity organized and validly
existing under the laws of the United States, any state thereof or the District of Columbia, expressly assumes, by a supplemental indenture
or other documents or instruments as may executed and delivered to the Trustee, in form satisfactory to the Trustee, all of the Subsidiary
Guarantor’s obligations under the Note Documents and any conveyance, transfer or lease of all or substantially all of its properties
is made subject to any Mortgages securing such properties;
(b) immediately
after giving effect to such transaction, and treating any indebtedness which becomes an obligation of the Subsidiary Guarantor, any other
Subsidiary or the Company as a result of such transaction as having been incurred by the Subsidiary Guarantor, such Subsidiary or the
Company at the time of such transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become
an Event of Default shall have happened and be continuing; and
(c) the
Company has delivered to the Trustee and the Collateral Agent an Officer’s Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture or other document or instrument is required
in connection with such transaction, that such supplemental indenture and any other documents or instruments as may be executed and delivered
to the Trustee and Collateral Agent comply with this Section 8.02 and that all conditions precedent provided for in this Indenture
relating to such transaction have been complied with;
provided
that this Section 8.02 shall not apply to a transaction pursuant to which such Subsidiary Guarantor shall be released
from its obligations under its Subsidiary Guarantee and this Indenture in accordance with Section 12.04 of this Indenture.
Upon any consolidation of
a Subsidiary Guarantor with, or merger of a Subsidiary Guarantor into, any other Person or any conveyance, transfer or lease all or substantially
all of the properties and assets of a Subsidiary Guarantor in accordance with this Section 8.02, the successor Person formed by
such consolidation or into which such Subsidiary Guarantor is merged or to which such conveyance, transfer or lease is made shall succeed
to, and be substituted for, and may exercise every right and power of, such Subsidiary Guarantor under this Indenture with the same effect
as if such successor Person had been named as a Subsidiary Guarantor in this Indenture, and thereafter, except in the case of a lease,
the predecessor Subsidiary Guarantor shall be relieved of all obligations and covenants under this Indenture and its Subsidiary Guarantee.
ARTICLE Nine
AMENDMENT,
SUPPLEMENT AND WAIVER
Section 9.01. Without
Consent of Holders
Without the consent of any
Holders, the Company, when authorized by a Board Resolution, and the Trustee and the Collateral Agent, at any time and from time to time,
may amend or supplement this Indenture, the Security Documents, any Guarantee and the Notes, for any of the following purposes:
(a) to
evidence the succession of another Person to the Company or a Subsidiary Guarantor and the assumption by any such successor of the covenants
of the Company herein and in the Notes, obligations under the Security Documents or the covenants of such Subsidiary Guarantor herein,
in its Subsidiary Guarantee or obligations under the Security Documents; or
(b) to
add to the covenants of the Company or any Subsidiary Guarantor for the benefit of the Holders of the Notes or to surrender any right
or power herein conferred upon the Company or any Subsidiary Guarantor; or
(c) to
add any additional Events of Default for the benefit of the Holders of the Notes; or
(d) to
add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of
the Notes in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate
the issuance of any Notes in uncertificated form; or
(e) to
facilitate the Maturity Extension in accordance with the provisions of this Indenture; or
(f) to
add guarantees of or to secure the Notes or any guarantees thereof, including to add Collateral with respect to any or all of the Notes
and/or Guarantees; or
(g) to
evidence the release of any Subsidiary Guarantor or any guarantor of the Notes in accordance with this Indenture; or
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee, a successor Collateral Agent or a successor
paying agent with respect to the Notes 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;
or
(i) to
cure any ambiguity, to correct or supplement any provision contained herein or in any indenture supplemental hereto which may be defective
or inconsistent with any other provision contained herein or in any supplemental indenture; or
(j) to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance (whether
legal or covenant defeasance) or satisfaction and discharge of the Notes; provided that any such action shall not adversely affect the
interests of the Holders of the Notes in any material respect; or
(k) with
respect to the Security Documents, as provided in the relevant Security Document;
(l) to
comply with the rules of any applicable Depositary;
(m) to
make any other provisions with respect to matters or questions arising under this Indenture, provided that such action pursuant to this
clause (m) shall not adversely affect the interests of the Holders of Notes in any material respect;
(n) to
provide for the succession of any parties to the Security Documents (and any amendments that are administrative or ministerial in nature)
in connection with an amendment, renewal, extension, substitution, refinancing, restructuring, replacement, supplement or other modification
from time to time that is not prohibited by this Indenture;
(o) to
conform the provisions of this Indenture and the Notes to the “Description of Notes” section of the Company’s offering
memorandum, dated December 18, 2023; or
(p) to
release any Collateral from the Lien securing the Notes when permitted or required by the Security Documents and this Indenture (including
pursuant to Section 10.11 and Section 14.04).
Section 9.02. With
Consent of Holders
With the consent of the Holders
of not less than a majority in principal amount of the Outstanding Notes affected, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee and Collateral Agent may amend or supplement this Indenture,
the Security Documents, any Guarantee and the Notes 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 Notes under this Indenture; provided,
however, that no such amendment or supplement shall, without the consent of the Holder of each Outstanding Note affected thereby,
(a) except
as permitted by Article Two (as in effect on the Issue Date), change the Stated Maturity of the principal of, or any installment
of principal or Accreted Value of, as applicable, and, on or after the Extension Date, any cash interest on, any Note, or reduce the
principal amount or Accreted Value thereof, or, on or after the Extension Date, the rate of cash interest thereon, or reduce the amount
(including the amount of any premium payable) due upon the redemption thereof, or reduce the amount of the principal or Accreted Value
of a Note which would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, or
change the date on which any Note may be subject to redemption, or change any Place of Payment where, or the coin or currency in which,
any Note or any Accreted Value of, premium, if any, or cash 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, in the case of a Change of Control Offer, on or after the Change of Control Payment Date (or Change of Control Payment Date as may
be delayed, as the case may be)), or
(b) reduce
the percentage in principal amount of the Outstanding Notes, the consent of whose Holders is required for any such amendment or supplement,
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) amend,
supplement, waive or modify the Company’s obligation to make a Change of Control Offer, or reduce the premium payable upon any
repurchase of Notes pursuant to a Change of Control Offer or change the time at which any Notes may be repurchased pursuant to Section 10.12
of this Indenture, whether through an amendment, supplement, waiver or modification of provisions in Section 10.12 of this Indenture
or any definitions or other provisions in this Indenture or otherwise, unless such amendment, supplement waiver or modification shall
be in effect prior to the occurrence of the applicable Change of Control;
(d) modify
any of the provisions of this Section or Section 5.13, 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 Note affected thereby;
provided, however, that this clause shall not be deemed to require the consent of any Holder with respect to changes in the references
to “the Trustee” or “the Collateral Agent” and concomitant changes in this Section or the deletion of this
proviso, in accordance with the requirements of Section 6.11 and clause (h) of Section 9.01;
(e) change
or alter the priority of the Liens securing the Notes in any material portion of the Collateral in any way materially adverse, taken
as a whole, to the Holders, other than as provided under the terms of this Indenture or the Security Documents; or
(f) change
any Security Document or the provisions in this Indenture dealing with Collateral or application of trust proceeds of the Collateral
with the effect of releasing the Liens on all or substantially all of the Collateral which secure the Notes, other than as provided under
the terms of this Indenture or the Security Documents.
It
shall not be necessary for any Act of Holders 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 9.03. Execution
of Supplemental Indentures
In executing, or accepting
the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights,
duties or immunities under this Indenture or otherwise.
Section 9.04. Effect
of Supplemental Indentures
Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 9.05. [Reserved]
Section 9.06. Reference
in Notes to Supplemental Indentures
Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new
Notes so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Notes.
ARTICLE Ten
Covenants
Section 10.01. Payment
of Principal, Accreted Value, Premium and Interest
The Company covenants and
agrees that it will duly and punctually pay the principal or Accreted Value of (and premium, if any), as applicable, and, on or after
the Extension Date, any cash interest on, the Notes in accordance with the terms of the Notes and this Indenture.
Section 10.02. Maintenance
of Office or Agency
The Company will maintain
in each Place of Payment for the Notes an office or agency where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices
and demands.
The Company may also from
time to time designate one or more other offices or agencies where the Notes may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or rescission shall
in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Notes for such purposes.
The Company will 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.
Section 10.03. Money
for Notes Payments to Be Held in Trust
If the Company shall at any
time act as its own Paying Agent with respect to the Notes, it will, on or before each due date of the principal or Accreted Value of
(and premium, if any), as applicable, and, on or after the Extension Date, any cash interest on, any of the Notes, segregate and hold
in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal or Accreted Value of (and premium, if
any), as applicable, and, on or after the Extension Date, any cash 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 Company shall
have one or more Paying Agents for the Notes, it will, prior to each due date of the principal or Accreted Value (and premium, if any),
as applicable, and, on or after the Extension Date, any cash interest on, any Notes, deposit with a Paying Agent a sum sufficient to
pay the principal or Accreted Value (and premium, if any), as applicable, and, on or after the Extension Date, any cash interest, so
becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal or Accreted Value (and premium,
if any), as applicable, and, on or after the Extension Date, cash interest, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
The Company will cause each
Paying Agent for the Notes 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 (1) comply with the provisions of
the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Company (or any
other obligor upon the Notes) in the making of any payment in respect of the Notes, upon the written request of the Trustee, forthwith
pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Notes.
The Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; 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.
Any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal or Accreted Value (and premium,
if any), as applicable, and, on or after the Extension Date, any cash interest on, any Notes and remaining unclaimed for two years after
such principal or Accreted Value (and premium, if any), as applicable, and, on or after the Extension Date, cash interest, has become
due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any
such repayment, may at the expense of the Company cause to be published once, in an Authorized Newspaper in each Place of Payment, notice
that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.04. Statement
by Officers as to Default
The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officer’s Certificate,
stating whether or not to the best knowledge of the signers thereof the Company is in default in the performance and observance of any
of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder)
and, if the Company shall be in default, specifying all such defaults and the nature and status thereof of which they may have knowledge.
Section 10.05. Existence
Subject to Article Eight,
the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter
and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right
or franchise if the Board shall determine that the preservation thereof is no longer desirable in the conduct of the business of the
Company.
Section 10.06. Payment
of Taxes and Liens
The Company shall, and shall
cause each Subsidiary to, pay and discharge, or cause to be paid and discharged, when due (a) all federal and state income, and
all other material taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or upon any properties
belonging to it, and (b) all lawful claims of materialmen, mechanics, carriers, warehousemen and landlords for labor, materials,
supplies and rentals which, if unpaid, might become a Lien on any properties of such Person; provided, however, that this Section shall
not require the payment or discharge of any such tax, assessment, charge, levy or claim which is being contested in good faith by appropriate
proceedings which operate to suspend the collection thereof and for which adequate reserves have been established on the books of such
Person in accordance with generally accepted accounting principles.
Section 10.07. Limitations
on Incurrence of Debt and Issuance of Preferred Stock.
(a) The
Company will not, and will not permit any Subsidiary to, incur any Debt if, immediately after giving effect to the incurrence of such
additional Debt and the application of the proceeds therefrom, the aggregate principal amount of all outstanding Debt of the Company
and its Subsidiaries on a consolidated basis determined in accordance with generally accepted accounting principles is greater than 60%
of the sum of (without duplication):
(i) the
Total Assets of the Company and its Subsidiaries as of the end of the fiscal quarter covered by the Company’s Annual Report on
Form 10-K, or its Quarterly Report on Form 10-Q, as the case may be, most recently filed with the Commission (or, if such
filing is not permitted or required under the Exchange Act, with the Trustee ) prior to the incurrence of such additional Debt; and
(ii) the
purchase price of any real estate assets or mortgages receivable acquired, and the amount of any securities offering proceeds received
(to the extent that such proceeds were not used to acquire real estate assets or mortgages receivable or used to reduce Debt), by the
Company or any Subsidiary since the end of such fiscal quarter, including those proceeds obtained in connection with the incurrence of
such additional Debt.
“Adjusted Total
Assets” means the sum of (i) and (ii) above.
(b) The
Company will not, and will not permit any Subsidiary to, incur any Secured Debt if, immediately after giving effect to the incurrence
of such additional Secured Debt and the application of the proceeds therefrom, the aggregate principal amount of all outstanding Secured
Debt of the Company and its Subsidiaries on a consolidated basis determined in accordance with generally accepted accounting principles
is greater than 40% of Adjusted Total Assets.
(c) The
Company will not, and will not permit any Subsidiary to, incur any Debt if, immediately after giving effect to the incurrence of such
additional Debt and on a pro forma basis, including the application of the proceeds therefrom, the ratio of Consolidated Income Available
for Debt Service to the Annual Debt Service for the four consecutive fiscal quarters most recently ended prior to the date on which such
additional Debt is to be incurred is less than 1.5 to 1.0, calculated on the assumptions that:
(i) such
Debt and any other Debt incurred by the Company and its Subsidiaries on a consolidated basis since the first day of such four-quarter
period and the application of the proceeds therefrom, including to refinance other Debt, had occurred at the beginning of such period;
(ii) the
repayment, retirement or other discharge of any other Debt by the Company and its Subsidiaries on a consolidated basis since the first
day of such four-quarter period had occurred at the beginning of such period (except that, in making such computation, the amount of
Debt under any revolving credit facility shall be computed based upon the average daily balance of such Debt during such period);
(iii) in
the case of Acquired Debt or Debt incurred in connection with or in contemplation of any acquisition, including any Person becoming a
Subsidiary, since the first day of such four-quarter period, the related acquisition had occurred as of the first day of such period
with appropriate adjustments with respect to such acquisition being included in such pro forma calculation; and
(iv) in
the case of any acquisition or disposition by the Company and its Subsidiaries on a consolidated basis of any asset or group of assets
since the first day of such four-quarter period, whether by merger, stock purchase or sale, or asset purchase or sale, such acquisition
or disposition or any related repayment of Debt had occurred as of the first day of such period with the appropriate adjustments with
respect to such acquisition or disposition being included in such pro forma calculation.
If the Debt giving rise to
the need to make the foregoing calculation or any other Debt incurred after the first day of the relevant four-quarter period bears interest
at a floating interest rate, then, for purposes of calculating the Annual Debt Service, the interest rate on such Debt shall be computed
on a pro forma basis as if the average interest rate which would have been in effect during the entirety of such four-quarter period
had been the applicable rate for the entirety of such period.
(d) The
Company will not permit any Collateral Guarantor to incur any Funded Debt, suffer to exist any guarantee by any Collateral Guarantor
of the Company’s obligations under its 9.750% Senior Notes due 2025 and 4.375% Senior Notes due 2031 or issue any shares of Disqualified
Stock or Preferred Stock.
(e) Notwithstanding
the limitations contained in paragraphs (a), (b), (c) and (d) of this Section 10.07 and Section 10.08, the Company
and its Subsidiaries may incur Permitted Refinancing Indebtedness.
Section 10.08. Maintenance
of Total Unencumbered Assets.
The Company and its Subsidiaries
will at all times maintain Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of the Unsecured
Debt of the Company and its Subsidiaries on a consolidated basis in accordance with generally accepted accounting principles.
Section 10.09. Limitations
on Liens.
The Company will not, and
will not cause or permit any of the Collateral Guarantors to create, incur, assume or otherwise cause to exist or become effective any
Lien securing Debt upon any Collateral other than Permitted Liens.
Section 10.10. Provision
of Financial Information.
Whether or not the Company
is subject to Section 13 or 15(d) of the Exchange Act, it will, within 15 days after each of the respective dates by which
it would have been required to file annual reports, quarterly reports and other documents with the Commission if it were so subject,
(1) transmit by mail to all Holders, as their names and addresses appear in the Security Register, without cost to such Holders,
copies of the annual reports, quarterly and other reports, financial statements and other documents which it would have been required
to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, if it were subject to such Sections, (2) file
with the Trustee copies of the annual reports, quarterly or other reports, financial statements and other documents which it would have
been required to file with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, if it was subject to such
Sections, and (3) promptly upon written request and payment of the reasonable cost of duplication and delivery, supply copies of
such documents to any prospective Holder; provided that, the foregoing requirements shall be deemed satisfied if the foregoing materials
are available on the Commission’s EDGAR system or on the Company’s website within the applicable time period. The Trustee
shall have no liability or responsibility for the filing, timeliness or content of any such reports, financial statements, documents
or information filed by the Company and delivery of such reports, financial statements, documents or information to the Trustee is for
informational purposes only and receipt of such shall not constitute constructive notice thereof or any information contained therein.
Notwithstanding the foregoing,
if at any time the Notes are guaranteed by any direct or indirect parent company of the Company, the Company may satisfy its obligations
under this Section 10.10 with respect to financial information relating to the Company by furnishing financial information relating
to such direct or indirect parent company; provided, however, that the same is accompanied by consolidating information that explains
in reasonable detail the differences between the information relating to such direct or indirect parent company and any of its Subsidiaries
other than the Company and its Subsidiaries, on the one hand, and the information relating to the Company and its Subsidiaries on a standalone
basis, on the other hand.
Section 10.11. Limitation
on Collateral Asset Sales; Event of Loss.
(a) The
Company shall not, and shall not cause or permit any of the Collateral Guarantors to consummate a Collateral Asset Sale unless: (i) the
Company (or the Collateral Guarantor, as the case may be) receives consideration (including by way of relief from or by any other Person
assuming responsibility for, any liabilities, contingent or otherwise) at the time of the Collateral Asset Sale at least equal to the
Fair Market Value (determined on the date of contractually agreeing to such sale) of the assets or properties issued or sold or otherwise
disposed of; and (ii) at least 90% of the consideration received in the Collateral Asset Sale by the Company or such Collateral
Guarantor, as the case may be, is in the form of cash or Cash Equivalents.
(b) No
later than the 20th Business Day following receipt of the Net Proceeds in respect of a Collateral Asset Sale, the Company shall be required
to issue a notice to redeem such aggregate Principal Amount At Maturity of Notes (on a pro rata basis) equal to (x) the
Net Proceeds plus, (y) in the event that the Fair Market Value of the applicable Collateral at the time of the Collateral Asset
Sale as provided in Section 10.11(a) is less than the amount equal to 80% of the value (as of the Issue Date as determined
by the Company) of the Collateral subject to the Collateral Asset Sale, the Incremental Amount, if any, at a Redemption Price equal to
100% of the Principal Amount At Maturity of such Notes (a “Collateral Asset Sale Redemption”), plus accrued and unpaid
interest thereon (if such Collateral Asset Sale Redemption is made on or after the Extension Date) to, but not including, the Redemption
Date. Any Collateral Asset Sale Redemption shall be made pursuant to the provisions of Section 11.04 through 11.08.
(c) If
any Event of Loss occurs with respect to the Collateral, which results in the realization or receipt by the Company or any Collateral
Guarantor of Net Proceeds, the Company (or the applicable Collateral Guarantor, as the case may be) shall apply such Net Proceeds, on
or prior to the 20th Business Day after the date of the realization or receipt of such Net Proceeds, to redeem such aggregate principal
amount of Notes equal to the Net Proceeds in respect of such Event of Loss, if any, at a Redemption Price equal to 100% of the Principal
Amount At Maturity thereof (an “Event of Loss Redemption”), plus accrued and unpaid interest thereon (if such Event
of Loss Redemption is made on or after the Extension Date) to, but not including, the Redemption Date, provided that any Event of Loss
Redemption shall be made pursuant to the provisions of Section 11.04 through 11.08, provided further that no Event of Loss Redemption
shall be required pursuant to this Section 10.11(c) with respect to such portion of Net Proceeds that the Company (or the
applicable Collateral Guarantor, as the case may be) intends to reinvest or use in accordance with Section 10.11(d);
(d) With
respect to any Net Proceeds received with respect to any Event of Loss that are subject to the provisions of Section 10.11(c) above,
at the option of the Company (or the applicable Collateral Guarantor, as the case may be), the Company or the Collateral Guarantor may,
within 120 days (the “Reinvestment Window”) following the receipt of the Net Proceeds, (i) elect to reinvest
all or any portion of such Net Proceeds to replace, repair or reconstruct the Collateral subject to the Event of Loss or elect to acquire
replacement property that will become Collateral, (ii) elect to use all or any portion of such Net Proceeds to satisfy any continuing
or unsatisfied obligations of the Company or any Collateral Guarantor to tenants, operators or managers of Collateral Property subject
to the Event of Loss and (iii) any combination of the foregoing (in each case, a “Reinvestment Election”); provided
that if the Company or the Collateral Guarantor does not make a Reinvestment Election within the Reinvestment Window or any Net Proceeds
are no longer intended to be used for a Reinvestment Election after the Company or the Collateral Guarantor has made a Reinvestment Election,
an amount equal to any such Net Proceeds not used for a Reinvestment Election shall be applied to an Event of Loss Redemption as set
forth in Section 10.11(c) within 20 Business Days after the earlier of (A) the date that the Company or Collateral
Guarantor reasonably determines that such Net Proceeds shall not be used for a Reinvestment Election or are no longer intended to be,
or cannot be, used for a Reinvestment Election or (B) expiration of the Reinvestment Window if the Company or the applicable Collateral
Guarantor has not made a Reinvestment Election; provided further that the Company (or the applicable Collateral Guarantor, as the case
may be) may elect to make such Reinvestment Election prior to receiving such Net Proceeds and deem the amount so invested or used to
be applied pursuant to and in accordance with Section 10.11(c).
(e) For
the purposes of this Section 10.11 (and no other provision), the following shall be deemed to be cash or Cash Equivalents:
(i) the
greater of the principal amount and carrying value of any liabilities (as reflected on the most recent balance sheet of the Company provided
hereunder or in the footnotes thereto), or if incurred, accrued or increased subsequent to the date of such balance sheet, such liabilities
that would have been reflected on the balance sheet of the Company (or in the footnotes thereto) if such incurrence, accrual or increase
had taken place on or prior to the date of such balance sheet, as determined in good faith by the Company, of the Company or any Collateral
Guarantor, other than liabilities that are by their terms subordinated to the Notes Obligations, that are assumed by the transferee of
any such assets (or are otherwise extinguished in connection with the transactions relating to such Collateral Asset Sale) pursuant to
a written agreement which releases the Company or such Collateral Guarantor from such liabilities; and
(ii) any
securities received by the Company or such Collateral Guarantor from such transferee that are converted by the Company or such Collateral
Guarantor into cash or Cash Equivalents (to the extent of the cash or Cash Equivalents received) within 180 days following the closing
of the applicable Collateral Asset Sale.
Section 10.12. Repurchase
of Notes upon Change of Control.
If
a Change of Control occurs, each Holder of Notes will have the right to require the Company to repurchase some or all (in minimum principal
amounts of $2,000 or an integral multiple of $1,000, provided that the remaining principal amount of any Note repurchased in part must
not be less than $2,000) of such Holder’s Notes at a purchase price in cash equal to 100% of the Principal Amount At Maturity of
the Notes, plus (if such repurchase with respect to the Change of Control occurs on or after the Extension Date) accrued and unpaid
interest, if any, up to, but not including, the date of repurchase (the “Change of Control Payment”).
Within ten (10) Business
Days following a Change of Control, the Company will mail a notice to each Holder of Notes (with a copy to the Trustee) describing the
transaction or transactions that constitute, or are expected to constitute, the Change of Control and offering to repurchase Notes on
a specified date (the “Change of Control Payment Date”), at a purchase price equal to the Change of Control Payment
(the “Change of Control Offer”). The Change of Control Payment Date will be no earlier than 30 days and no later than
60 days from the date such notice is mailed (or in the case of Global Notes, given pursuant to applicable procedures of the Depositary).
On the Change of Control
Payment Date, the Company will, to the extent lawful:
(a) accept
for payment all Notes or portions thereof properly tendered and not withdrawn pursuant to the Change of Control Offer;
(b) deposit
with the Paying Agent for the Notes an amount equal to the Change of Control Payment in respect of all Notes or portions thereof so accepted;
and
(c) deliver
or cause to be delivered to the Trustee the Notes accepted and an Officer’s Certificate stating the aggregate principal amount
of all Notes purchased by the Company.
The Paying Agent for the
Notes will promptly mail to each Holder of Notes properly tendered (or in the case of Global Notes, will promptly pay to the Depositary
or its nominee) the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail, or cause to be transferred
by book-entry, to each Holder a new Note in principal amount equal to any unpurchased portion of the Notes surrendered; provided that
such new Note will be in a minimum principal amount of $2,000 or an integral multiple of $1,000 in excess thereof.
The Company will comply with
the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations to the extent those laws
and regulations are applicable to any Change of Control Offer. If the provisions of any of the applicable securities laws or regulations
conflict with the provisions of this Section 10.12, the Company will comply with the applicable securities laws and regulations
and will not be deemed to have breached its obligations under this Section 10.12 by virtue of that compliance.
The Company will not be obligated
to make or consummate a Change of Control Offer if a third party makes the Change of Control Offer in the manner, at the times and otherwise
in compliance with the requirements set forth in this Section 10.12 applicable to a Change of Control Offer made by the Company
and purchases all Notes properly tendered and not withdrawn under such Change of Control Offer. In addition, the Company will not be
obligated to make or consummate a Change of Control Offer with respect to the Notes, if it has irrevocably elected to redeem all of the
Notes under Section 11.01 of this Indenture and has not defaulted on its redemption obligations. Notwithstanding anything to the
contrary contained herein, a Change of Control Offer may be made in advance of a Change of Control, subject to one or more conditions
precedent, including, but not limited to, the consummation of such Change of Control. The Change of Control Payment Date may be delayed
until such time (including more than 60 days after the notice is mailed or delivered, including by electronic transmission) as such Change
of Control is consummated. The Company may rescind or amend the Change of Control Offer in the event that the Company shall determine
that the Change of Control will not occur by the Change of Control Payment Date, or by the Change of Control Payment Date as so delayed.
A Change of Control Offer made in advance of the Change of Control may be made at the same time as consents are solicited with respect
to an amendment, supplement or waiver of this Indenture. Prior to the occurrence of a Change of Control, the provisions of this Section 10.12
relating to the Company’s obligation to make a Change of Control Offer may be waived or modified with the written consent of the
Holders of a majority in principal amount of the Notes then Outstanding.
Section 10.13. Post-Closing
Mortgages.
(a) With
respect to each Collateral Property, the Company shall provide the Collateral Agent within 75 days following the Issue Date, a Mortgage
and any necessary UCC fixture filing in respect thereof, together with:
(i) evidence
that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered and such Mortgage and any corresponding
UCC or equivalent fixture filing (if applicable) are in form suitable for filing or recording in all filing or recording offices that
are reasonably necessary in order to create a valid and subsisting Lien on such Collateral Property in favor of the Collateral Agent
for the benefit of the Trustee, the Collateral Agent and the Holders of the Notes each with a secured amount equal to the principal amount
at maturity of the Notes, provided, however, with respect to any Collateral Property located in a jurisdiction that requires payment
of mortgage recording tax (or the equivalent), the Mortgages in such jurisdictions will secure an amount equal to the value of such Collateral
Property (as determined by the Company as of the Issue Date), (B) such Mortgage and any corresponding UCC or equivalent fixture
filings have been duly submitted for recording of filing, as applicable, and (C) all filing and recording taxes and fees have been
paid or otherwise provided for; and
(ii) fully
paid lender’s policies of title insurance (the “Mortgage Policies”) in an amount commercially reasonable (as
determined by the Company on the Issue Date) issued by a nationally recognized title insurance company in the applicable jurisdiction
that is selected by the Company, insuring the relevant Mortgage as having created a first priority valid and subsisting Lien on the real
property described therein with the ranking or the priority which it is expressed to have in such Mortgage, subject only to Permitted
Liens, with such endorsements as are customary and appropriate (as reasonably determined by the Company), which shall include a tie-in
endorsement to the extent available on commercially reasonable terms.
Section 10.14. Maintenance
of Property.
In addition to the requirements
of any of the Security Documents, the Company shall, and shall cause each Subsidiary to, (a) protect and preserve, or cause to
be protected and preserved, each Collateral Property, including, but not limited to, any intellectual property necessary to the conduct
of its respective business, and maintain, or cause to be maintained, in good repair, working order and condition all tangible properties,
ordinary wear and tear excepted, and (b) from time to time make or cause to be made all needed and appropriate repairs, renewals,
replacements and additions to each such Collateral Property, so that the business carried on in connection therewith may be properly
and advantageously conducted at all times, in each case, the failure with which to comply could reasonably be expected to have a Material
Adverse Effect with respect thereto.
Section 10.15. Insurance.
In addition to the requirements of any of the
Security Documents, the Company shall, and shall cause each Subsidiary to, maintain, or cause to be maintained, insurance (on a replacement
cost basis) with financially sound and reputable insurance companies against such risks and in such amounts as is customarily maintained
by Persons engaged in similar businesses or as may be required by applicable law.
Section 10.16. Environmental
Matters.
(a) The
Company shall, and shall cause each Subsidiary to, comply, or cause to be complied, in all material respects with all Environmental Laws
with respect to each Collateral Property the failure with which to comply could reasonably be expected to have a Material Adverse Effect
with respect thereto. The Company shall comply, and shall cause each other Subsidiary to comply, and the Company shall use, and shall
cause each other Subsidiary to use, commercially reasonable efforts to cause all other Persons occupying, using or present on the Collateral
Properties to comply with all Environmental Laws with respect to each Collateral Property the failure with which to comply could reasonably
be expected to have a Material Adverse Effect with respect thereto. The Company shall, and shall cause each Subsidiary to, promptly take
all actions and pay or arrange to pay all costs necessary for it and for the Properties to comply in all material respects with all Environmental
Laws and all Governmental Approvals, including actions to remove and dispose of all Hazardous Materials and to clean up each Collateral
Property as required under Environmental Laws the failure with which to comply could reasonably be expected to have a Material Adverse
Effect with respect thereto. The Company shall, and shall cause each Subsidiary to, promptly take, or cause to be taken, all commercially
reasonable actions necessary to prevent the imposition of any Liens on any of their respective properties arising out of or related to
any Environmental Laws. Nothing in this Section shall impose any obligation or liability whatsoever on the Collateral Agent or
any Holder.
(b) The
Company shall not, and shall not permit any Subsidiary or any other Person to, use, generate, discharge, emit, manufacture, handle, process,
store, release, transport, remove, dispose of or clean up any Hazardous Materials on, under or from the Properties or any Collateral
Property in violation of any Environmental Law or in a manner that could lead to any environmental claim or pose a risk to human health,
safety or the environment, in each case, that could reasonably be expected to have a Material Adverse Effect. Nothing in this Section shall
impose any obligation or liability whatsoever on the Collateral Agent or any Holder.
Section 10.17. Additional
Subsidiary Guarantors.
If at any time (i) any
Subsidiary (whether existing as of the date hereof or hereafter acquired or created) becomes (including on the date of acquisition or
creation) a Subsidiary (except for a Subsidiary that does not own directly or indirectly any Collateral Property and that is an Excluded
Subsidiary or a Foreign Subsidiary) or (ii) any Subsidiary ceases to be an Excluded Subsidiary or a Foreign Subsidiary, then the
Company will cause such Subsidiary to execute and deliver to the Trustee, within thirty (30) days from such date, a supplemental indenture
substantially in the form of Exhibit C hereto pursuant to which such Subsidiary will fully and unconditionally guarantee
the Notes, jointly and severally with all other Subsidiary Guarantors, and deliver an Officer’s Certificate and Opinion of Counsel
reasonably satisfactory to the Trustee. To the extent applicable, any such Subsidiary that owns Collateral shall comply with the requirements
set out in clause (i) of the definition of Collateral Asset Sale.
Section 10.18. Transactions
with Affiliates.
(a) The
Company shall not, and shall not permit any of its Subsidiary Guarantors to, directly or indirectly, make any payment to, or lease or
dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction
or series of transactions, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate
of the Company (each of the foregoing, an “Affiliate Transaction”), unless such Affiliate Transaction is in the ordinary
course of and pursuant to the reasonable requirements of the business of the Company and its Subsidiaries or is on terms that are not
materially less favorable to the Company or the relevant Subsidiary than those that could have been obtained in a comparable transaction
by the Company or such Subsidiary with an unrelated Person;
(b) The
provisions of Section 10.18(a) shall not apply to the following:
(i) any
transaction or series of transactions between or among any of the Company and its Subsidiaries, including any payment to, or lease or
disposition of any properties or assets to, or purchase of any property or assets from, or any contract, agreement, amendment, understanding,
loan, advance or guarantee with, or for the benefit of, any of the Company and its Subsidiaries;
(ii) any
employment agreement or other employee compensation plan or arrangement in existence on the Issue Date or entered into thereafter in
the ordinary course of business including any issuance of securities or the payment of reasonable and customary compensation, benefits,
fees and reimbursement of expenses paid to, and indemnity, contribution and insurance provided on behalf of, officers, managers, directors,
trustees, employees, agents or consultants of the Company or any Subsidiary;
(iii) the
issuance of Capital Stock (other than Preferred Stock or Disqualified Stock) of the Company to any Person;
(iv) the
issuances of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of, employment
arrangements, stock option and stock ownership plans or similar employee, manager or director or trustee benefit plans approved by the
Board of the Company or any direct or indirect parent of the Company or of a Subsidiary of the Company, as appropriate, in good faith;
(v) loans,
advances and other transactions between or among the Company any Subsidiary and/or any joint venture (regardless of the form of legal
entity) in which the Company or any Subsidiary has invested to the extent not otherwise prohibited hereunder; and
(vi) any
contribution to the capital of the Company.
ARTICLE Eleven
Redemption
of Notes
Section 11.01. Redemption
at the Option of the Company
The
Company may redeem the Notes at its option (an “Optional Redemption”) in whole or in part at any time and from
time to time prior to their Stated Maturity at a Redemption Price equal to 100% of the outstanding Principal Amount At Maturity of the
Notes being redeemed, plus, in the case of any Notes redeemed during the Extension Period, accrued and unpaid interest, if any, on the
Notes being redeemed, to, but not including, the applicable Redemption Date. Any redemption and notice of redemption may, at the Company’s
discretion, be subject to the satisfaction of one more conditions precedent as provided in Section 11.05.
Nothing in this Indenture
will limit the Company’s or its Affiliates’ ability to repurchase or retire Notes other than by redemption, whether by tender
offer, exchange offer, open market repurchases, privately negotiated transactions or otherwise.
Section 11.02. Election
to Redeem; Notice to Trustee
The election of the Company
to redeem Notes shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all the
Notes, the Company shall, at least 15 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Notes to be redeemed.
Section 11.03. Mandatory
Redemption
The Company shall only be
required to make a mandatory redemption with respect to the Notes as provided in Section 10.11, and the Notes will not otherwise
be subject to mandatory redemption or any sinking fund payments.
Section 11.04. Selection
by Trustee of Notes to Be Redeemed
If less than all the Notes
are to be redeemed, not more than 60 days prior to the Redemption Date, the Trustee shall select the Notes to be redeemed pro rata, from
the Outstanding Notes not previously called for redemption, by such method as the Trustee shall deem appropriate and which may provide
for the selection for redemption of a portion of the principal amount or Accreted Value, as applicable, of any Note, provided that
the unredeemed portion of the principal amount of any Note shall be in an authorized denomination (which shall not be less than the minimum
authorized denomination) for such Note. If less than all the Notes are to be redeemed, the Notes to be redeemed shall be selected not
more than 60 days (subject to Section 11.05) prior to the Redemption Date by the Trustee, from the Outstanding Notes not previously
called for redemption in accordance with the preceding sentence.
The Trustee shall promptly
notify the Company in writing of the Notes selected for redemption as aforesaid and, in case of any Notes selected for partial redemption
as aforesaid, the principal amount or Accreted Value, as applicable, thereof to be redeemed.
The provisions of the two
preceding paragraphs shall not apply with respect to any redemption affecting only a single Note, whether such Note is to be redeemed
in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Note shall be
in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Note.
For all purposes of this
Indenture, unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any
Notes redeemed or to be redeemed only in part, to the portion of the principal amount of such Notes which has been or is to be redeemed.
Section 11.05. Notice
of Redemption
Notice of redemption shall
be given in the manner provided in Section 1.06 to the Holders of Notes to be redeemed not less than 10 nor more than 60 days prior
to the Redemption Date, except that any notice of redemption may be given more than 60 days prior to a Redemption Date if the notice
is issued in connection with a Defeasance of Notes pursuant to Article Thirteen hereof or a satisfaction and discharge of this
Indenture pursuant to Article Four hereof. In connection with any redemption of Notes, any such redemption may, at the Company’s
discretion, be subject to satisfaction of one or more conditions precedent. In addition, if such redemption or notice is subject to satisfaction
of one or more conditions precedent, such notice may state that, in the Company’s discretion, the Redemption Date may be delayed
(including by more than 60 days) until such time as any or all such conditions shall be satisfied (or waived by the Company in its sole
discretion), or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not
have been satisfied (or waived by the Company in its sole discretion) by the Redemption Date, or by the Redemption Date so delayed.
All notices of redemption
shall state:
(a) the
Redemption Date,
(b) the
Redemption Price,
(c) if
less than all the Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption of any such Notes,
the principal amounts) of the Notes to be redeemed and, if less than all the Outstanding Notes are to be redeemed, the principal amount
of the Notes to be redeemed,
(d) that
on the Redemption Date the Redemption Price will become due and payable upon the Notes to be redeemed and, if applicable, that interest
thereon will cease to accrue on and after said date,
(e) the
place or places where such Notes are to be surrendered for payment of the Redemption Price,
(f) the
applicable “CUSIP” numbers, if any, and
(g) if
applicable, that such redemption may be subject to satisfaction of one or more conditions precedent.
A notice of redemption published
as contemplated by Section 1.06 need not identify the particular Notes to be redeemed.
Notice of redemption of Notes
to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the
name and at the expense of the Company.
Section 11.06. Deposit
of Redemption Price
On or before 11:00 a.m. Eastern
Time on any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.03 of this Indenture) an amount of money sufficient to pay
the Redemption Price of, and, in the case of Notes being redeemed on or after the Extension Date, accrued and unpaid interest, on, all
the Notes which are to be redeemed on such Redemption Date.
Section 11.07. Notes
Payable on Redemption Date
Notice of redemption having
been given as aforesaid, the Notes so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein
specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest)
the Accreted Value of such Notes will cease to increase and such Notes shall cease to bear cash interest, as applicable. Upon surrender
of any of the Notes for redemption in accordance with said notice, such Note shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, installments of interest whose Stated Maturity
is on or prior to the Redemption Date shall be payable to the Holders of such Notes, or one or more Predecessor Notes, registered as
such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Note called for redemption
shall not be so paid upon surrender thereof for redemption, the principal or Accreted Value, as applicable and any premium (if any) shall,
until paid, on or after Extension Date, bear interest from the Redemption Date at the rate prescribed therefor in the Note.
Section 11.08. Notes
Redeemed in Part
Any Note which is to be redeemed
only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or the attorney
of such Holder duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder
of such Note without service charge, a new Note or Notes of like tenor, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered.
ARTICLE Twelve
SUBSIDIARY
GUARANTEES
Section 12.01. Subsidiary
Guarantee.
Subject
to this Article Twelve, each of the Subsidiary Guarantors hereby, jointly and severally, unconditionally guarantees on a senior
secured basis with respect to the Collateral Guarantors and, on a senior unsecured basis with respect to the Non-Collateral Guarantors,
to each Holder of Notes 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 Notes or the obligations of the Company under this Indenture or the Notes, that:
(a) the principal or Accreted Value of (and premium, if any), as applicable, and, on or after the Extension Date, any cash
interest on, the Notes shall be promptly paid in full when due, whether at Stated Maturity, upon redemption or repurchase, by acceleration
or otherwise, and all obligations of the Company to Holders of the Notes or the Trustee under this Indenture or the Notes shall be promptly
paid in full or promptly performed, as the case may be, all in accordance with the terms of this Indenture and the Notes; and (b) in
case of any extension of time of payment or renewal of any Notes 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, upon redemption or repurchase,
by acceleration or otherwise. Failing payment when due of any amount so guaranteed or failing performance of any other obligation so
guaranteed for whatever reason, each Subsidiary Guarantor shall be obligated to pay, or to perform or cause the performance of, the same
immediately. Each Subsidiary Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.
Each of the Subsidiary Guarantors
hereby agrees that its obligations hereunder shall be unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Notes with respect
to any provisions of this Indenture or the Notes, the release of any other Subsidiary Guarantor, the recovery of any judgment against
the Company, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge
or defense of a Subsidiary Guarantor. Each Subsidiary 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 Company, any right to require
a proceeding first against the Company, protest, notice and all demands whatsoever and covenant that this Subsidiary Guarantee shall
not be discharged except by complete performance of the obligations contained in the Notes and this Indenture.
Unless and until released
with respect to any Subsidiary Guarantor in accordance with Section 12.04 of this Indenture, this Subsidiary Guarantee shall remain
in full force and effect and continue to be effective should any petition be filed by or against the Company for liquidation or reorganization,
should the Company become insolvent or make an assignment for the benefit of creditors or should a custodian, trustee, liquidator or
other similar official be appointed for all or any part of the Company’s assets. If any Holder of the Notes or the Trustee is required
by any court or governmental authority or is otherwise required to return to the Company, any Subsidiary Guarantor or any custodian,
trustee, liquidator or other similar official acting in relation to the Company or such Subsidiary Guarantor, any amount paid by the
Company or such Subsidiary Guarantor to the Trustee or such Holder, the Notes and this Subsidiary Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Subsidiary Guarantor further agrees (to the fullest extent permitted by
law) that, as between it, on the one hand, and the Holders of the Notes and the Trustee, on the other hand, (a) subject to this
Article Twelve, the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five of this
Indenture, for the purposes of this Subsidiary Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (b) in the event of any acceleration of such obligations as provided in such
Article Five, such obligations (whether or not due and payable) shall forthwith become due and payable by the Subsidiary Guarantors
for the purpose of this Subsidiary Guarantee.
Section 12.02. Limitation
on Subsidiary Guarantor Liability.
Each Subsidiary Guarantor,
and by its acceptance of Notes, each Holder of the Notes, hereby confirms that it is the intention of all such parties that the Subsidiary
Guarantee of such Subsidiary Guarantor not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law, the Uniform
Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law to the extent applicable to any Subsidiary
Guarantee. To effectuate the foregoing intention, the Trustee, the Holders of the Notes and the Subsidiary Guarantors hereby irrevocably
agree that the obligations of each Subsidiary Guarantor under its Subsidiary Guarantee will be limited to the maximum amount as will,
after giving effect to all other contingent and fixed liabilities of such Subsidiary Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution from or payments made by or on behalf of any other Subsidiary
Guarantor in respect of the obligations of such other Subsidiary Guarantor under this Article Twelve, result in the obligations
of such Subsidiary Guarantor under its Subsidiary Guarantee and this Indenture not constituting a fraudulent transfer or conveyance under
such laws. Each Subsidiary Guarantor that makes a payment under its Subsidiary Guarantee is entitled to a contribution from each other
Subsidiary Guarantor in a pro rata amount based on the adjusted net assets of each Subsidiary Guarantor, so long as the exercise of such
right does not impair the rights of the Holders of the Notes under this Subsidiary Guarantee.
Section 12.03. Execution
and Delivery of Subsidiary Guarantee.
To evidence its Subsidiary
Guarantee set forth in Section 12.01 of this Indenture, each Subsidiary Guarantor hereby agrees that this Indenture or a supplemental
indenture substantially in the form of Exhibit C hereto entered into by such Subsidiary Guarantor, as the case may be, shall
be executed on behalf of such Subsidiary Guarantor by an officer or other authorized signatory of such Subsidiary Guarantor.
Each Subsidiary Guarantor
hereby agrees that its Subsidiary Guarantee set forth in Section 12.01 of this Indenture shall remain in full force and effect
notwithstanding the absence of the endorsement of any notation of such Subsidiary Guarantee on the Notes.
If an officer or other authorized
signatory of any Subsidiary Guarantor whose signature is on this Indenture or a supplemental indenture entered into by such Subsidiary
Guarantor, as the case may be, no longer holds that office or is no longer such an authorized signatory at the time the Trustee authenticates
any Note, the Subsidiary Guarantee of such Subsidiary Guarantor shall be valid nevertheless with respect to such Note.
The delivery of any Note
by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Subsidiary Guarantee set forth in this
Indenture on behalf of the Subsidiary Guarantors.
Section 12.04. Release
of a Subsidiary Guarantor.
The Subsidiary Guarantee
of a Subsidiary Guarantor will automatically terminate and be released, all other obligations of such Subsidiary Guarantor under this
Indenture will automatically terminate and such Subsidiary Guarantor will be automatically released from its obligations under its Subsidiary
Guarantee and its other obligations under this Indenture:
(a) in
the event of a sale or other disposition of all or substantially all of the properties or assets of such Subsidiary Guarantor (including
by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) the Company or
a Subsidiary;
(b) in
the event of a sale or other disposition (including through merger or consolidation) of Capital Stock of such Subsidiary Guarantor to
a Person that is not (either before or after giving effect to such transaction) the Company or a Subsidiary and such Subsidiary Guarantor
ceases to be a Subsidiary as a result of the sale or other disposition;
(c) [reserved];
(d) upon
the satisfaction and discharge, Defeasance or Covenant Defeasance of the Notes in accordance with Article Four or Article Thirteen
of this Indenture;
(e) upon
the liquidation or dissolution of such Subsidiary Guarantor, provided no default under this Indenture or Event of Default has occurred
that is continuing;
(f) upon
the merger of such Subsidiary Guarantor into, or the consolidation of such Subsidiary Guarantor with the Company or another Subsidiary
Guarantor;
(g) [reserved];
(h) with
respect to a Collateral Guarantor, the sale or Collateral Property Release of all of the Collateral Properties that are owned directly
or indirectly by such Collateral Guarantor pursuant to or in compliance with the terms of this Indenture; or
(i) with
respect to a Non-Collateral Guarantor, upon such Non-Collateral Guarantor becoming an Excluded Subsidiary or a Foreign Subsidiary.
At the request of the Company,
and upon delivery to the Trustee of an Officer’s Certificate and an Opinion of Counsel each stating that all conditions provided
for in this Indenture to the release of a Subsidiary Guarantor from its Subsidiary Guarantee have been complied with (provided that the
legal counsel delivering such Opinion of Counsel may rely as to matters of fact on one or more Officer’s Certificates of the Company),
the Trustee shall execute and deliver an appropriate instrument evidencing such release (it being understood that the failure to obtain
any such instrument shall not impair any release pursuant to this Section 12.04).
Section 12.05. Benefits
Acknowledged.
Each Subsidiary Guarantor
acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by this Indenture and that
the guarantee and waivers made by it pursuant to its Subsidiary Guarantee are knowingly made in contemplation of such benefits.
Section 12.06. Waiver
of Subrogation.
Until all of the Notes are
discharged and paid in full, each Subsidiary Guarantor hereby irrevocably waives and agrees not to exercise any claim or other rights
which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Company’s
obligations under the Notes or this Indenture and such Subsidiary Guarantor’s obligations under this Subsidiary Guarantee and this
Indenture, in any such instance including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification,
and any right to participate in any claim or remedy of the Holders of the Notes against the Company, whether or not such claim, remedy
or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from
the Company, directly or indirectly, in cash or other assets or by set off or in any other manner, payment or security on account of
such claim or other rights. If any amount shall be paid to any Subsidiary Guarantor in violation of the preceding sentence and any amounts
owing to the Trustee or the Holders of the Notes under the Notes or this Indenture, shall not have been paid in full, such amount shall
have been deemed to have been paid to such Subsidiary Guarantor for the benefit of, and held in trust for the benefit of, the Trustee
or the Holders of the Notes and shall forthwith be paid to the Trustee for the benefit of itself or such Holders to be credited and applied
to the obligations in favor of the Trustee or such Holders, as the case may be, whether matured or unmatured, in accordance with the
terms of this Indenture.
Section 12.07. Same
Currency; No Set Off.
Each payment to be made by
a Subsidiary Guarantor under its Subsidiary Guarantee shall be payable in the currency in which corresponding payment obligations of
the Company under the Notes or this Indenture are denominated, and shall be made without set off, counterclaim, reduction or diminution
of any kind or nature.
Section 12.08. Guarantee
Obligations Continuing.
The obligations of each Subsidiary
Guarantor under this Indenture shall be continuing and shall remain in full force and effect until all such obligations have been paid
and satisfied in full. Each Subsidiary Guarantor agrees with the Trustee that, to the fullest extent permitted by applicable law, it
will from time to time deliver to the Trustee suitable acknowledgments of this continued liability in such form as counsel to the Trustee
may reasonably request and as will prevent any action brought against it in respect of any default under this Indenture being barred
by any statute of limitations now or hereafter in force and, in the event of the failure of a Subsidiary Guarantor so to do, it hereby
irrevocably appoints the Trustee the attorney and agent of such Subsidiary Guarantor to make, execute and deliver such written acknowledgment
or acknowledgments or other instruments as may from time to time become necessary or reasonably advisable, in the judgment of the Trustee
on the advice of counsel, to fully maintain and keep in force the liability of such Subsidiary Guarantor under this Indenture.
Section 12.09. No
Merger or Waiver; Cumulative Remedies.
To the fullest extent permitted
by applicable law, no Subsidiary Guarantee shall operate by way of merger of any of the obligations of a Subsidiary Guarantor under any
other agreement. To the fullest extent permitted by applicable law, no failure to exercise and no delay in exercising, on the part of
the Trustee or the Holders of the Notes, any right, remedy, power or privilege under this Indenture or the Notes, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder or under this Indenture or
the Notes preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. To the fullest
extent permitted by applicable law, the rights, remedies, powers and privileges in this Indenture, the Notes and any other document or
instrument between a Subsidiary Guarantor and/or the Company and the Trustee and the Holders of the Notes are cumulative and not exclusive
of any rights, remedies, powers and privilege provided by law.
Section 12.10. Dealing
with the Company and Others.
The Holders and the Trustee,
without releasing, discharging, limiting or otherwise affecting in whole or in part the obligations and liabilities of any Subsidiary
Guarantor under this Indenture and without the consent of or notice to any Subsidiary Guarantor, may to the fullest extent permitted
by applicable law:
(a) grant
time, renewals, extensions, compromises, concessions, waivers, releases, discharges and other indulgences to the Company or any other
Person;
(b) take
or abstain from taking security or collateral from the Company or from perfecting security or collateral of the Company;
(c) release,
discharge, compromise, realize, enforce or otherwise deal with or do any act or thing in respect of (with or without consideration) any
and all collateral, mortgages or other security given by the Company or any third party with respect to the obligations or matters contemplated
by this Indenture or the Notes;
(d) accept
compromises or arrangements from the Company;
(e) apply
all monies at any time received from the Company or from any security upon such part of the obligations of the Subsidiary Guarantors
under Section 12.01 of this Indenture as the Holders may see fit or change any such application in whole or in part from time to
time as the Holders may see fit; and
(f) otherwise
deal with, or waive or modify their right to deal with, the Company and all other Persons and any security as the Holders or the Trustee
may see fit.
Section 12.11. Enforcement;
Expenses.
If
any Subsidiary Guarantor defaults in performing any of its obligations under this Indenture, the Trustee may proceed in its name as trustee
under this Indenture in the enforcement of such obligations against such Subsidiary Guarantor by any remedy provided by law, whether
by legal proceedings or otherwise. Each of the Subsidiary Guarantors, jointly and severally, agree to pay all costs, fees and expenses
(including, without limitation, reasonable fees and expenses of legal counsel) incurred by the Trustee, any Holder of the Notes, or the
agent, advisor or counsel of the Trustee or any Holder, in enforcing the performance by any Subsidiary Guarantor of its obligations under
this Indenture.
ARTICLE Thirteen
Defeasance
and Covenant Defeasance
Section 13.01. Company’s
Option to Effect Defeasance or Covenant Defeasance
The Company may, at its option,
at any time, elect to have either Section 13.02 or Section 13.03 applied to the Notes upon compliance with the conditions
set forth below in this Article.
Section 13.02. Defeasance
and Discharge
Upon the Company’s
exercise under Section 13.01 hereof of the option to have this Section 13.02 applied to the Notes the Company shall be deemed
to have been discharged from its obligations with respect to such Outstanding Notes on the date the conditions set forth in Section 13.04
are satisfied (hereinafter “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by the Notes and to have satisfied all its other obligations under such
Notes and this Indenture insofar as such Notes are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following, which shall survive until otherwise terminated or discharged hereunder: (a) the
rights of Holders of such Notes to receive, solely from the trust fund described in Section 13.04 and as more fully set forth in
such Section, payments in respect of the Accreted Value or principal, as applicable, of and any premium and interest, if any, on such
Notes when such payments are due, (b) the Company’s obligations with respect to such Notes under Sections 3.04, 3.05, 3.06,
10.02 and 10.03, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) this Article. Subject
to compliance with this Article, the Company may exercise its option under this Section 13.02 notwithstanding the prior exercise
of its option under Section 13.03.
Section 13.03. Covenant
Defeasance
Upon the Company’s
exercise of the option to have this Section 13.03 applied to the Notes, (a) the Company shall be released from its obligations
with respect to such Notes under Section 8.01, Section 8.02, Section 10.05, Section 10.06, Section 10.07,
Section 10.08, Section 10.09, Section 10.10, Section 10.11, Section 10.12, Section 10.13, Section 10.14,
Section 10.15, Section 10.16, Section 10.17 and Section 10.18 and any covenants provided pursuant to clause (b) of
Section 9.01 for the benefit of the Holders of such Notes and (b) the occurrence of any event specified in clause (d) (with
respect to any of Section 8.01, Section 8.02, Section 10.05, Section 10.06, Section 10.07, Section 10.08,
Section 10.09, Section 10.10, Section 10.11, Section 10.12, Section 10.13, Section 10.14, Section 10.15,
Section 10.16, Section 10.17 and Section 10.18 or clause (b) of Section 9.01) of Section 5.01 shall
not be deemed to be an Event of Default on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter
“Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect to such Notes, the Company
may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or
Article, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or Article or by
reason of any reference in any such Section or Article to any other provision herein or in any other document, but the remainder
of this Indenture and such Notes shall be unaffected thereby.
Section 13.04. Conditions
to Defeasance or Covenant Defeasance
The following shall be the
conditions to the application of either Section 13.02 or Section 13.03, as applicable, to the Notes, as the case may be:
(a) The
Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee which satisfies the requirements
contemplated by Section 6.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Notes, (i) money in an amount, or (ii) Government Obligations which through the scheduled payment of principal
and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment,
money in an amount, or (iii) a combination thereof, in each case sufficient to pay and discharge, and which shall be applied by
the Trustee (or any such other qualifying trustee) to pay and discharge, the principal or Accreted Value of (and premium, if any), as
applicable, and, on or after the Extension Date, any cash interest on, such Notes on the respective Stated Maturities or the applicable
Redemption Date, in accordance with the terms of this Indenture and the Notes; provided that with respect to a Redemption
Date, if all or a portion of the Redemption Price is based on or consists of a redemption premium that is required to be calculated based
on a treasury rate or other floating or adjustable rate a specified number of days prior to such Redemption Date, the Redemption Price
deposited shall be sufficient for purposes of the immediately preceding sentence to the extent that the Redemption Price so deposited
is calculated using an amount equal to such premium computed using such treasury rate or other floating or adjustable rate as of such
specified number of days preceding the date of such deposit. As used herein, “Government Obligations” means, with
respect to the Notes, securities that are (x) direct obligations of the government that issued the currency in which such Note
is denominated (or, if such Note is denominated in euros, the direct obligations of any government that is a member of the European Monetary
Union) for the payment of which such government’s full faith and credit is pledged or (y) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of such government the payment of which is unconditionally guaranteed as
a full faith and credit obligation by such government, which, in either case, are not callable or redeemable at the option of the issuer
thereof and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act)
as custodian with respect to any Government Obligation where the relevant government is the United States of America or a specific payment
of principal of or interest on any such Government Obligation held by such custodian for the account of the holder of such depositary
receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable
to the holder of such depository receipt from any amount received by the custodian in respect of such Government Obligation or the specific
payment of principal of or interest on such Government Obligation evidenced by such depository receipt.
(b) In
the event of an election to have Section 13.02 apply to the Notes, the Company shall have delivered to the Trustee an Opinion of
Counsel stating that (i) the Company 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 Federal income tax law, in either case (i) or
(ii) to the effect that the Holders of the Outstanding Notes will not recognize gain or loss for Federal income tax purposes as
a result of such deposit, Defeasance and discharge and will be subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit, Defeasance and discharge had not occurred.
(c) In
the event of an election to have Section 13.03 apply to the Notes, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of the Outstanding Notes will not recognize gain or loss for Federal income tax purposes as a
result of such deposit and Covenant Defeasance and will be subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit and Covenant Defeasance had not occurred.
(d) No
Event of Default with respect to the Notes shall have occurred and be continuing at the time of such deposit (other than an Event of
Default resulting from transactions occurring contemporaneously with the borrowing of funds, or the borrowing of funds, to be applied
to such deposit or other indebtedness which is being repaid, repurchased, redeemed, defeased (whether legal or covenant defeasance) or
discharged, and, in each case, the granting of liens in connection therewith).
(e) Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture or any agreement or instrument governing any other indebtedness which is being repaid, repurchased,
redeemed, defeased (whether legal or covenant defeasance) or discharged) to which the Company is a party or by which the Company is bound.
(f) The
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the Defeasance or the Covenant Defeasance have been satisfied.
The Defeasance or Covenant
Defeasance will be effective on the day on which all of the applicable conditions above have been satisfied.
Upon satisfaction of such
conditions, the Trustee shall, upon written request, execute proper instrument(s) acknowledging such Defeasance or Covenant Defeasance.
Section 13.05. Deposited
Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions
Subject to the provisions
of the last paragraph of Section 10.03, all money and Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the Trustee and any such other
trustee are referred to collectively, for purposes of this Section 13.05, as the “Trustee”) pursuant to Section 13.04
in respect of any Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of such Notes and this Indenture,
to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee
may determine, to the Holders of such Notes, of all sums due and to become due thereon in respect of principal and premium (if any) and
interest, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations deposited pursuant
to Section 13.04 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 Outstanding Notes.
Anything in this Article Thirteen
to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or
Government Obligations held by it as provided in Section 13.04 hereof which, in the opinion or based on a report or certificate
of a nationally recognized firm of independent public accountants, investment bank or appraisal firm expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect an equivalent
Defeasance or Covenant Defeasance, as the case may be.
Section 13.06. Reinstatement
If the Trustee or the Paying
Agent is unable to apply any money in accordance with Section 13.02 or 13.03 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article Thirteen until
such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 13.02 or 13.03; provided,
however, that if the Company makes any payment principal or Accreted Value of (and premium, if any), as applicable, and, on or
after the Extension Date, any cash interest on, any Note following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of the Notes to receive such payment from the money held by the Trustee or the Paying Agent.
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. In proving the existence of this Indenture it shall not be necessary to produce more than
one copy.
ARTICLE Fourteen
COLLATERAL
AND SECURITY
Section 14.01. The
Collateral Agent.
(a) By
accepting a Note, each Holder will be deemed to have irrevocably appointed the Collateral Agent to act as collateral agent under the
applicable Security Documents and irrevocably authorized the Collateral Agent to (i) perform the duties and exercise the rights
and powers that are specifically given to it under the Security Documents or other documents to which it is a party, together with any
other incidental rights and powers, and (ii) execute each document to be executed by the Collateral Agent on its behalf, any Security
Documents and all other instruments relating to the Security Documents. The Holders may not, individually or collectively, take any direct
action to enforce the Security Documents. The Collateral Agent will have no duties or obligations with respect to the Collateral except
those expressly set forth hereunder or in the applicable Security Documents and no implied covenants or obligations shall be read into
such documents against the Collateral Agent. The Collateral Agent will not be liable for any action taken or not taken by it in the absence
of its own gross negligence, willful misconduct or bad faith (as determined by a court of competent jurisdiction in a final and non-appealable
decision). The Collateral Agent will be entitled to rely upon, and will not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed by it in good faith to be genuine and to have been signed
or sent by the proper person. The Collateral Agent may consult with legal counsel (who may be counsel for the Company), independent accountants
and other experts selected by it, and will not be liable for any action taken or not taken by it in accordance with the advice of any
such counsel, accountants or experts. Without limiting the generality of the foregoing, the Collateral Agent:
(i) shall
not be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;
(ii) shall
not have any duty to take any discretionary action or exercise any discretionary powers and shall not be required to take any action
that, in its opinion or the opinion of its counsel, may expose the Collateral Agent to liability or that is contrary to any Security
Document or applicable law;
(iii) shall
not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Company or any Affiliate
if the Company that is communicated to or obtained by the Person serving as a Collateral Agent or any of its Affiliates in any capacity;
(iv) shall
not be liable for any action taken or not taken by it (i) in the absence of its own gross negligence or willful misconduct (as
determined by a court of competent jurisdiction in a final and non-appealable decision) or (ii) in reliance on an Officer’s
Certificate of the Company stating that such action is permitted by the terms of this Indenture. The Collateral Agent shall be deemed
not to have knowledge of any Event of Default hereunder unless and until written notice describing such Event of Default is received
by such Collateral Agent from the Trustee or the Company; and
(v) shall
not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in
connection with any Security Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder
or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein or therein or the occurrence of any Event of Default, (iv) the validity, enforceability, effectiveness
or genuineness of any Security Document or any other agreement, instrument or document, or the creation, perfection or priority of any
Lien purported to be created by any Security Document, (v) the existence, value or the sufficiency of any Collateral for any Notes
Obligations, or (vi) the satisfaction of any condition set forth in any operative agreements governing Notes Obligations or any
Security Document, other than to confirm receipt of items expressly required to be delivered to such Collateral Agent.
The use of the term “agent”
herein with reference to a Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising
under agency doctrine of any applicable law other than as a “representative” as such term is used in Section 9-102(a)(72)(E) of
the UCC.
BY ACCEPTING A NOTE EACH
HOLDER WILL BE DEEMED TO HAVE IRREVOCABLY AGREED TO THE FOREGOING PROVISIONS OF THIS SECTION 14.01(a) AND SHALL BE BOUND
BY THOSE AGREEMENTS TO THE FULLEST EXTENT PERMITTED BY LAW.
(b) The
Collateral Agent shall be subject to such directions as may be properly given in accordance with this Indenture and the Security Documents.
Except as expressly required by this Indenture and the Security Documents or otherwise in compliance with the prior sentence, the Collateral
Agent shall not be obligated:
(i) to
act upon directions purported to be delivered to it by any other Person;
(ii) to
foreclose upon or otherwise enforce any Lien securing the Notes or any of the Guarantees; or
(iii) to
take any other action whatsoever with regard to any or all of (x) the Liens securing the Notes, (y) the Guarantees or (z) the
Security Documents, or with regard to the Collateral.
(c) The
Collateral Agent may perform any and all of its duties and exercise its rights and powers by or through, and is authorized and empowered
to appoint, one or more co-agents or sub-agents or attorneys-in-fact as it deems necessary or appropriate in connection herewith and
shall not be liable for the negligence or misconduct of any such agents or attorneys-in-fact selected by it in good faith.
(d) Subject
to the appointment and acceptance of a successor Collateral Agent as provided below, the Collateral Agent may resign at any time by notifying
the Company and the Trustee. Upon any such resignation, the Company shall have the right to appoint a successor; provided that,
during the existence and continuation of an Event of Default pursuant to clause Section 5.01(a), (b), (e) or (f) hereof,
the Holders of a majority in principal amount of the Notes shall have the right to appoint a successor. If no successor shall have been
so appointed by the Company (or, if applicable, the Holders of a majority in principal amount of the Notes) and shall have accepted such
appointment within 30 days after the retiring Collateral Agent gives notice of its resignation, then such retiring Collateral Agent may,
on behalf of the Holders and the Trustee, petition at the expense of the Company a court of competent jurisdiction to appoint a successor
Collateral Agent. Upon the acceptance of its appointment as a Collateral Agent hereunder by a successor, such successor shall succeed
to and become vested with all the rights, powers, privileges and duties of the retiring Collateral Agent, and the retiring Collateral
Agent shall be discharged from its duties and obligations hereunder. The fees payable by the Company to a successor Collateral Agent
shall be the same as those payable to its predecessor unless otherwise agreed between the Company and such successor. After a Collateral
Agent’s resignation hereunder, the provisions of this Article Fourteen and Article Six hereof shall continue in effect
for the benefit of such retiring Collateral Agent, its sub-agents and their respective Affiliates in respect of any actions taken or
omitted to be taken by any of them while acting as Collateral Agent.
(e) The
benefits, protections and indemnities of the Trustee in Sections 6.03 and 6.07 hereof shall apply mutatis mutandi to the Collateral
Agent in its capacity as such, including, without limitation, the rights to receive and rely on Officer’s Certificates and Opinions
of Counsel, reimbursement and indemnification; provided that the applicable standard of care of the Collateral Agent with respect to
Sections 6.03 and 6.07 hereof shall be gross negligence and willful misconduct.
(f) Each
Holder, by its acceptance of any Notes, is deemed to have consented and agreed to the terms of each Security Document, as originally
in effect and as amended, supplemented or replaced from time to time in accordance with its terms or the terms of this Indenture; and
authorizes and empowers the Trustee to bind the Holders as set forth in the applicable Security Documents, if any, to which they are
a party and to perform its obligations and exercise its rights and powers thereunder. Notwithstanding the foregoing, no such consent
or deemed consent shall be deemed or construed to represent an amendment or waiver, in whole or in part, of any provision of this Indenture
or the Notes.
(g) Neither
the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Liens in any of the Collateral, for the validity or sufficiency of the Collateral
or any agreement or assignment contained therein, for the validity of the title of the Company or any grantor to the Collateral, for
insuring the Collateral or for the payment of taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance
of the Collateral.
(h) Beyond
the exercise of reasonable care in the custody thereof, neither the Trustee nor the Collateral Agent shall have any duty as to any Collateral
in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights
against prior parties or any other rights pertaining thereto and neither the Trustee nor the Collateral Agent shall be responsible for
filing any financing or continuation statements or recording any documents or instruments in any public office at any time or times or
otherwise perfecting or maintaining the perfection of any security interest in the Collateral. Each of the Trustee and the Collateral
Agent shall be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded
treatment substantially equal to that which it accords its own property and shall not be liable or responsible for any loss or diminution
in the value of any of the Collateral, by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected
by the Trustee or the Collateral Agent in good faith.
(i) Neither
the Trustee nor the Collateral Agent shall be responsible for the existence, genuineness or value of any of the Collateral or for the
validity, perfection, priority or enforceability of the Liens in any of the Collateral, whether impaired by operation of law or by reason
of any action or omission to act on its part hereunder, for the validity or sufficiency of the Collateral or any agreement or assignment
contained therein, for the validity of the title of the Company to the Collateral, for insuring the Collateral or for the payment of
taxes, charges, assessments or Liens upon the Collateral or otherwise as to the maintenance of the Collateral. The Trustee and the Collateral
Agent shall have no duty to ascertain or inquire as to the performance or observance of any of the terms of this Indenture or the Security
Documents by the Company or the Subsidiary Guarantors.
(j) Notwithstanding
any other provision hereof, neither the Collateral Agent nor the Trustee shall have any duties or obligations hereunder or under any
Security Document except those expressly set forth herein or therein. Without limiting the generality of the foregoing, in the event
that the Collateral Agent or the Trustee is required to acquire title to an asset for any reason, or take any managerial action of any
kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Collateral Agent’s
or the Trustee’s sole discretion may cause it to be considered an “owner or operator” under the provisions of the Comprehensive
Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. §9601, et seq., or otherwise cause
it to incur liability under CERCLA or any other federal, state or local law, the Collateral Agent and the Trustee each reserve the right,
instead of taking such action, to either resign or arrange for the transfer of the title or control of the asset to a court-appointed
receiver. Neither the Collateral Agent nor the Trustee shall be liable to any person for any environmental claims or contribution actions
under any federal, state or local law, rule or regulation by reason of the Collateral Agent’s actions and conduct as authorized,
empowered and directed hereunder or relating to the discharge, release or threatened release of hazardous materials into the environment.
If at any time it is necessary or advisable for the Collateral to be possessed, owned, operated or managed by any person other than the
grantor, the majority of the Holders shall direct the Collateral Agent or Trustee, as applicable, to appoint an appropriately qualified
person who they shall designate to possess, own, operate or manage, as the case may be, the Collateral.
(k) For
the avoidance of doubt, the Trustee and the Collateral Agent shall act only within the United States, and shall not be subject to any
foreign law, be required to act in any jurisdiction located outside the United States or be required to execute any foreign law governed
document.
Section 14.02. Acceptance
of Security Documents.
The Trustee and each Holder,
by accepting any Notes and the Subsidiary Guarantees, acknowledges that, as more fully set forth in the Security Documents, the Collateral
as now or hereafter constituted shall be for the benefit of all the Holders, the Collateral Agent and the Trustee, and that the Lien
granted in the Security Documents relating to the Notes in respect of the Trustee, the Collateral Agent and the Holders is subject to
and qualified and limited in all respects by the Security Documents and actions that may be taken thereunder.
Section 14.03. Further
Assurances.
The Company and each Collateral
Guarantor shall, and shall cause each Subsidiary that is a Collateral Guarantor to, execute and deliver, or cause to be executed and
delivered, to the Trustee any and all such documents, agreements, instruments, certificates, notices and acknowledgments, and shall take
or cause to be taken such further actions (including the filing and recording of financing statements and/or amendments thereto and other
documents and such other actions or deliveries of the type described under this Article Fourteen or the Security Documents (including
certificates and corporate and organizational documents)), which may be required by law or which the Trustee may (without obligation
to do so), from time to time, reasonably request to carry out the terms and conditions of this Indenture and the Security Documents and
to ensure the creation, perfection and priority of the Liens created or intended to be created by the Security Documents, in each case,
subject to the Security Documents, all at the expense of the Company.
The Company and each Collateral
Guarantor will (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation
of any Security Document or other document or instrument relating to any Collateral and (ii) do, execute, acknowledge, deliver,
record, re-record, file, re-file, register and re-register any and all such further acts (including notices to third parties), deeds,
certificates, assurances and other instruments as may be required from time to time in order to carry out more effectively the purposes
of the Security Documents.
Section 14.04. Release
of Liens.
The release of the Liens
over the property or assets constituting Collateral securing the Notes and the Guarantees of the Collateral Guarantors will automatically
and unconditionally occur upon any one or more of the following circumstances:
(a) as
to all Collateral, upon payment in full of the principal or Accreted Value of (and premium, if any), as applicable, and, on or after
the Extension Date, any accrued and unpaid cash interest, if any, on, the Notes and all other obligations in respect of the Notes under
this Indenture, the Guarantees and the Security Documents that are due and payable at or prior to the time such principal or Accreted
Value of (and premium, if any), as applicable, and, on or after the Extension Date, any accrued and unpaid cash interest, if any, are
paid;
(b) as
to any Collateral, upon consummation of the sale, transfer or other disposition of such Collateral by the Company or a Collateral Guarantor
to any Person other than the Company or a Subsidiary of the Company, to the extent such sale, transfer or other disposition is not prohibited
under this Indenture, including, without limitation, in connection with a permitted Collateral Asset Sale pursuant to Section 10.11;
(c) as
to any Collateral Property, upon consummation of an Optional Redemption pursuant to Section 11.01 of this Indenture of an aggregate
principal amount of Notes equal to the greater of (i) 100% of the value of such Collateral Property (as of the Issue Date as determined
by the Company) or (ii) 80% of the value of such Collateral Property (as of the time of such Optional Redemption as determined
by the Company), that the Company requests to be released from the Liens securing the Notes Obligations pursuant to a Company Order delivered
to the Trustee and Collateral Agent (a “Collateral Property Release”);
(d) in
the case of a Collateral Guarantor that is released from its Subsidiary Guarantee pursuant to the terms of this Indenture, with respect
to the Collateral provided by such Collateral Guarantor, upon the release of such Collateral Guarantor from its Subsidiary Guarantee;
(e) with
respect to any Collateral that is Capital Stock, upon the dissolution or liquidation of the issuer of that Capital Stock that is not
prohibited by this Indenture;
(f) as
to any Collateral or all Collateral, as ordered pursuant to applicable law under a final and nonappealable order or judgment of a court
of competent jurisdiction;
(g) as
to all or substantially all Collateral, with the consent of 100% of Holders of the Notes then Outstanding; otherwise, as to any Collateral,
with the consent of Holders of a majority of the aggregate principal amount of the Notes then Outstanding; or
(h) as
to all Collateral, in whole, upon legal defeasance, covenant defeasance or satisfaction and discharge of this Indenture as provided under
Article Thirteen hereof.
The Trustee or the Collateral
Agent shall execute any necessary or proper instrument or document to evidence or acknowledge the release, satisfaction or termination
of any Lien securing the Notes Obligations that is requested by the Company. In the event that the Trustee or the Collateral Agent is
requested by the Company to execute any necessary or proper instrument or document to evidence or acknowledge the release, satisfaction
or termination of any Lien securing the Notes Obligations, the Trustee or the Collateral Agent, as applicable, shall be entitled to receive
an Officer’s Certificate stating that all conditions precedent under this Indenture and the Security Documents to such release
have been complied with and that it is permitted for the Trustee and/or the Collateral Agent to execute and deliver the instruments or
documents requested by the Company in connection with such release. Any such instrument or document shall be prepared by the Company.
Neither the Trustee nor the Collateral Agent shall be liable for any such release undertaken in reliance upon any such Officer’s
Certificate, and notwithstanding any term hereof or in any Security Document to the contrary, neither the Trustee nor the Collateral
Agent shall be under any obligation to release any such Lien, or execute and deliver any such instrument or document of release, satisfaction
or termination with respect thereto, unless and until it receives such Officer’s Certificate.
Section 14.05. Compensation
and Indemnification.
Without duplication of any
amounts owing under Section 6.07 hereof, the Collateral Agent shall be entitled to the compensation and indemnification set forth
in Section 6.07 hereof (with the references to the Trustee therein being deemed to refer to the Collateral Agent and references
to this Indenture therein being deemed to refer to this Indenture and the Security Documents) and subject to Section 14.01(e) hereof.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the day and year first above written.
|
Company: |
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DIVERSIFIED HEALTHCARE TRUST |
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By: |
/s/
Matthew C. Brown |
|
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Name: Matthew C. Brown |
|
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Title: Chief Financial Officer and Treasurer |
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Subsidiary Guarantors: |
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20 CAPITAL DRIVE LLC |
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ARMADA DRIVE CARLSBAD LLC |
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SNH CLEAR BROOK LLC |
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SNH GLENVIEW (PATRIOT) LLC |
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SNH MEDICAL OFFICE PROPERTIES LLC
SNH PHOENIX (COTTON) LLC |
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SNH REIT ROCKWALL LLC |
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SNH WELL PROPERTIES GA-MD LLC |
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SNH BLAINE INC. |
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SNH WARD AVE. PROPERTIES I INC. |
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DHC ZB PROPERTIES LLC |
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DHC ZB WI LLC |
|
SNH LTF PROPERTIES LLC |
|
SNH ALT LEASED PROPERTIES TRUST |
|
SNH CLEAR CREEK PROPERTIES TRUST |
|
SNH WELL PROPERTIES TRUST |
|
SPTMISC PROPERTIES TRUST |
|
SPTSUN II PROPERTIES TRUST |
|
CSL GROUP, INC. |
|
O.F.C. CORPORATION |
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SNH AL AIMO, INC. |
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SNH AL AIMO II, INC. |
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SNH AL AIMO TENANT II, INC. |
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SNH AL AIMO TENANT, INC. |
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SNH AL CRIMSON TENANT INC. |
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SNH AL TRS, INC. |
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SNH AL WILMINGTON TENANT INC. |
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SNH GRANITE GATE INC. |
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SNH IL JOPLIN INC. |
[Signature Page to Indenture]
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SNH PARK PLACE I INC. |
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SNH PARK PLACE II INC. |
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SNH SE TENANT 2 TRS, INC. |
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SNH SE TENANT TRS, INC. |
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SNH TRS INC. |
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SNH YONKERS TENANT INC. |
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CCC ALPHA INVESTMENTS TRUST |
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CCC DELAWARE TRUST |
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CCC FINANCING I TRUST |
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CCC PUEBLO NORTE TRUST |
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CCC RETIREMENT PARTNERS TRUST |
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CCC RETIREMENT TRUST |
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HRES1 PROPERTIES TRUST |
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HRES2 PROPERTIES TRUST |
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SNH AL PROPERTIES TRUST |
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SNH CHS PROPERTIES TRUST |
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SNH FM FINANCING TRUST |
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SNH GRANITE GATE LANDS TRUST |
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SNH GROVE PARK TRUST |
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SNH IL PROPERTIES TRUST |
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SNH MEDICAL OFFICE PROPERTIES TRUST
SNH NS MTG PROPERTIES 2 TRUST |
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SNH NS PROPERTIES TRUST |
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SNH PARKVIEW PROPERTIES TRUST |
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SNH SE PROPERTIES TRUST |
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SNH SOMERFORD PROPERTIES TRUST |
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SNH TELLICO TRUST |
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SNH YONKERS PROPERTIES TRUST |
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SNH/CSL PROPERTIES TRUST |
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SNH/LTA PROPERTIES TRUST |
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SPTGEN PROPERTIES TRUST |
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SPTIHS PROPERTIES TRUST |
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SPTMNR PROPERTIES TRUST |
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SPTMRT PROPERTIES TRUST |
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DHC HOLDINGS LLC |
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MSD POOL 1 LLC |
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MSD POOL 2 LLC |
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SNH AL CUMMING LLC |
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SNH AL CUMMING TENANT LLC |
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SNH AL GEORGIA HOLDINGS LLC |
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SNH AL GEORGIA LLC |
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SNH AL GEORGIA TENANT LLC |
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SNH AL PROPERTIES LLC |
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SNH AZ TENANT LLC |
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SNH BAKERSFIELD LLC |
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SNH BAMA TENANT LLC |
[Signature Page to Indenture]
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SNH CAL TENANT LLC |
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SNH CO TENANT LLC |
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SNH DEL TENANT LLC |
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SNH DERBY TENANT LLC |
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SNH FLA TENANT LLC |
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SNH GEORGIA TENANT LLC |
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SNH GRANITE GATE LANDS TENANT LLC |
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SNH GRANITE GATE TENANT LLC |
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SNH GROVE PARK TENANT LLC |
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SNH INDY TENANT LLC |
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SNH KENT PROPERTIES LLC |
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SNH LINCOLN TENANT LLC |
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SNH LONGHORN TENANT LLC |
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SNH MASS TENANT LLC |
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SNH MD TENANT LLC |
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SNH MO TENANT LLC |
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SNH MODESTO LLC |
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SNH NC TENANT LLC |
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SNH NEB TENANT LLC |
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SNH NJ TENANT GP LLC |
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SNH NJ TENANT LLC |
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SNH NM TENANT LLC |
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SNH NORTHWOODS LLC |
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SNH NORTHWOODS TENANT LLC |
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SNH OHIO TENANT LLC |
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SNH OMISS TENANT LLC |
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SNH PARK PLACE TENANT I LLC |
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SNH PARK PLACE TENANT II LLC |
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SNH PENN TENANT LLC |
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SNH PROJ LINCOLN TRS LLC |
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SNH REDMOND PROPERTIES LLC |
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SNH RMI FOX RIDGE MANOR PROPERTIES LLC |
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SNH RMI JEFFERSON MANOR PROPERTIES LLC |
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SNH RMI MCKAY MANOR PROPERTIES LLC |
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SNH RMI NORTHWOOD MANOR PROPERTIES LLC |
[Signature Page to Indenture]
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SNH RMI OAK WOODS MANOR PROPERTIES LLC |
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SNH RMI PARK SQUARE MANOR PROPERTIES LLC |
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SNH RMI PROPERTIES HOLDING COMPANY LLC |
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SNH RMI SMITH FARMS MANOR PROPERTIES LLC |
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SNH RMI SYCAMORE MANOR PROPERTIES LLC |
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SNH SC TENANT LLC |
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SNH TELLICO TENANT LLC |
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SNH TENN TENANT LLC |
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SNH TOTO TENANT LLC |
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SNH TRS LICENSEE HOLDCO LLC |
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SNH VA TENANT LLC |
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SNH VIKING TENANT LLC |
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SNH WILMINGTON LLC |
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SNH WIS TENANT LLC |
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SNH WY TENANT LLC |
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SNH/LTA PROPERTIES GA LLC |
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CCC LEISURE PARK CORPORATION |
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BAYSIDE PKWY FREMONT LLC |
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CCC INVESTMENTS I, L.L.C. |
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CCDE SENIOR LIVING LLC |
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CCOP SENIOR LIVING LLC |
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CRESTLINE VENTURES LLC |
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ELLICOTT CITY LAND I, LLC |
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SNH ALPHARETTA LLC |
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SNH BATON ROUGE (NORTH) LLC |
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SNH BATON ROUGE (REALTORS) LLC |
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SNH BRFL PROPERTIES LLC |
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SNH BRFL TENANT LLC |
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SNH BRIDGEWATER LLC |
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SNH CALI TENANT LLC |
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SNH CCMD PROPERTIES BORROWER LLC |
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SNH CCMD PROPERTIES LLC |
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SNH CCMD TENANT LLC |
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SNH DENHAM SPRINGS LLC |
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SNH DURHAM LLC |
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SNH FM FINANCING LLC |
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SNH GP CARLSBAD LLC |
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SNH INDEPENDENCE PARK LLC |
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SNH JACKSON LLC |
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SNH MARYLAND HEIGHTS LLC |
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SNH MEZZCO SAN ANTONIO LLC |
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SNH PLAQUEMINE LLC |
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SNH PLFL PROPERTIES LLC |
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SNH PLFL TENANT LLC |
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SNH PRAIRIEVILLE LLC |
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SNH REIT IRVING LLC |
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SNH REIT SAN ANTONIO LLC |
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SNH REIT VICTORIA LLC |
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SNH SE ASHLEY RIVER LLC |
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SNH SE ASHLEY RIVER TENANT LLC |
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SNH SE BARRINGTON BOYNTON LLC |
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SNH SE BARRINGTON BOYNTON TENANT LLC |
[Signature Page to Indenture]
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SNH SE BURLINGTON LLC |
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SNH SE BURLINGTON TENANT LLC |
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SNH SE DANIEL ISLAND LLC |
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SNH SE DANIEL ISLAND TENANT LLC |
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SNH SE HABERSHAM SAVANNAH LLC |
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SNH SE HABERSHAM SAVANNAH TENANT LLC |
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SNH SE HOLLY HILL LLC |
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SNH SE HOLLY HILL TENANT LLC |
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SNH SE KINGS MTN LLC |
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SNH SE KINGS MTN TENANT LLC |
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SNH SE MOORESVILLE LLC |
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SNH SE MOORESVILLE TENANT LLC |
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SNH SE N. MYRTLE BEACH LLC |
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SNH SE N. MYRTLE BEACH TENANT LLC |
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SNH SE PROPERTIES LLC |
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SNH SE SG LLC |
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SNH SE SG TENANT LLC |
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SNH ST. LOUIS LLC |
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SNH TEANECK PROPERTIES LLC |
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SNH TEANECK TENANT LLC |
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SNH TEMPE LLC |
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SNH/LTA SE HOME PLACE NEW BERN LLC |
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SNH/LTA SE MCCARTHY NEW BERN LLC |
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SNH/LTA SE WILSON LLC |
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By: |
/s/
Matthew C. Brown |
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Name: Matthew C. Brown |
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Title: Chief Financial Officer and Treasurer |
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SNH VALENCIA LP |
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By: SNH GP Valencia LLC, |
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its general partner |
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By: |
/s/ Matthew C.
Brown |
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Name: Matthew C. Brown |
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Title: Chief Financial Officer and Treasurer |
[Signature Page to Indenture]
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CCC FINANCING LIMITED, L.P. |
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By: CCC RETIREMENT TRUST, |
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its general partner |
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By: |
/s/
Matthew C. Brown |
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Name: Matthew C. Brown |
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Title: Chief Financial Officer and Treasurer |
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CCC RETIREMENT COMMUNITIES II, L.P. |
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By: CRESTLINE VENTURES LLC, |
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its general partner |
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By: |
/s/ Matthew C.
Brown |
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Name: Matthew C. Brown |
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Title: Chief Financial Officer and Treasurer |
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LEISURE PARK VENTURE LIMITED PARTNERSHIP |
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By: CCC LEISURE PARK CORPORATION, |
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its general partner |
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By: |
/s/ Matthew C.
Brown |
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Name: Matthew C. Brown |
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Title: Chief Financial Officer and Treasurer |
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SNH NJ TENANT LP |
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By: SNH NJ TENANT GP LLC, |
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its general partner |
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By: |
/s/ Matthew C.
Brown |
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Name: Matthew C. Brown |
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Title: Chief Financial Officer and Treasurer |
[Signature Page to Indenture]
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LEXINGTON OFFICE REALTY TRUST |
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SNH MEDICAL OFFICE REALTY TRUST |
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By: SNH MEDICAL OFFICE PROPERTIES
TRUST, |
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their beneficiary |
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By: |
/s/
Matthew C. Brown |
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Name: Matthew C. Brown |
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Title: Chief Financial Officer and Treasurer |
[Signature Page to Indenture]
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U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee and Collateral Agent |
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By: |
/s/
David W. Doucette |
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Name: David W. Doucette |
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Title: Vice President |
[Signature Page to Indenture]
Appendix A
PROVISIONS RELATING TO THE NOTES
Section 1.1 Definitions.
Capitalized terms used but
not defined in this Appendix A have the meanings given to them in the Indenture. The following capitalized terms have the following meanings:
“Applicable Procedures”
means, with respect to any transfer or transaction involving a Global Note or beneficial interest therein, the rules and procedures
of the Depositary for such Global Note, Euroclear or Clearstream, in each case to the extent applicable to such transaction and as in
effect from time to time.
“Clearstream”
means Clearstream Banking, Société Anonyme, or any successor securities clearing agency.
“Definitive Note”
means a certificated Note bearing, if required, the applicable restricted securities legend set forth in Section 2.2(e).
“Distribution Compliance
Period,” with respect to any Note, means the period of forty (40) consecutive days beginning on and including the later of
(a) the day on which such Note is first offered to persons other than distributors (as defined in Regulation S) in reliance on Regulation
S, notice of which day shall be promptly given by the Company to the Trustee, and (b) the date of issuance with respect to such
Note or any predecessor of such Note.
“Euroclear”
means Euroclear Bank S.A./N.V., as operator of Euroclear System or any successor securities clearing agency.
“IAI” means
an institution that is an “accredited investor” as described in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act and is not a QIB.
“QIB” means
a “qualified institutional buyer” as defined in Rule 144A.
“Regulation S”
means Regulation S promulgated under the Securities Act.
“Rule 144”
means Rule 144 promulgated under the Securities Act.
“Rule 144A”
means Rule 144A promulgated under the Securities Act.
“Transfer Restricted
Notes” means Definitive Notes and any other Notes that bear or are required to bear the legend set forth in Section 2.2(e)(i) hereto.
“U.S. person”
means a “U.S. person” as defined in Regulation S.
“Unrestricted Global
Note” means any Note in global form that does not bear or is not required to bear the Restricted Notes Legend.
Term: | |
Defined in Section: |
“Agent
Members” | |
2.1(c) |
“Definitive
Notes Legend” | |
2.2(e) |
“Global
Note” | |
2.1(b) |
“Global
Notes Legend” | |
2.2(e) |
“IAI
Global Note” | |
2.1(b) |
“IAI
Notes” | |
2.1(a) |
“OID
Notes Legend” | |
2.2(e) |
“Regulation
S Global Note” | |
2.1(b) |
“Regulation
S Notes” | |
2.1(a) |
“Restricted
Notes Legend” | |
2.2(e) |
“Rule 144A
Global Note” | |
2.1(b) |
“Rule 144A
Notes” | |
2.1(a) |
Section 2.1 Form and
Dating.
(a) Unless
registered or exempt from registration under the Securities Act, the Notes will be resold, initially only to QIBs in reliance on Rule 144A
(“Rule 144A Notes”), institutions which are an “accredited investor” within the meaning of subparagraphs
(a)(1), (2), (3) or (7) of Rule 501 under the Securities Act (“IAI Notes”) and to non-U.S. persons
in reliance on Regulation S (“Regulation S Notes”). Notes so issued may thereafter be transferred to, among others,
QIBs, institutional “accredited investors” and purchasers in reliance on Regulation S, subject to the restrictions on transfers
set forth herein.
(b) Global
Notes. Each series of IAI Notes shall be issued initially in the form of one or more global IAI Global Notes ( the “IAI
Global Note”), Regulation S Notes shall be issued initially in the form of one or more global Regulation S Global Notes (the
“Regulation S Global Note”) and Rule 144A Notes shall be issued initially in the form of one or more permanent
global notes in fully registered form (the “Rule 144A Global Note”), in each case without interest coupons and
bearing the Global Notes Legend and Restricted Notes Legend, and shall be deposited on behalf of the purchasers of the Notes represented
thereby with the Custodian, and registered in the name of the Depositary or a nominee of the Depositary, duly executed by the Company
and authenticated by the Trustee as provided in this Indenture. The IAI Global Note, Rule 144A Global Note, Regulation S Global
Note is each referred to herein as a “Global Note” and are collectively referred to herein as “Global Notes.”
Each Global Note shall represent such of the outstanding Notes as shall be specified in the “Schedule of Exchanges of Interests
in the Global Note” attached thereto and each shall provide that it shall represent the aggregate Principal Amount At Maturity
of Notes from time to time endorsed thereon and that the aggregate Principal Amount At Maturity of outstanding Notes represented thereby
may from time to time be reduced or increased, as applicable, to reflect exchanges and redemptions. Any endorsement of a Global Note
to reflect the amount of any increase or decrease in the aggregate Principal Amount At Maturity of outstanding Notes represented thereby
shall be made by the Trustee or the Custodian, at the direction of the Trustee, in accordance with instructions given by the Holder thereof
as required by Section 3.05 of the Indenture and Section 2.2(c) of this Appendix A.
(c) Book-Entry
Provisions. This Section 2.1(c) shall apply only to a Global Note deposited with or on behalf of the Depositary.
The Company shall execute and
the Trustee shall, in accordance with this Section 2.1(c) and Section 3.01 or Section 3.03, as applicable, of the
Indenture and pursuant to an order of the Company signed by one Officer of the Company, authenticate and deliver initially one or more
Global Notes that (i) shall be registered in the name of the Depositary for such Global Note or Global Notes or the nominee of such
Depositary and (ii) shall be delivered by the Trustee to such Depositary or pursuant to such Depositary’s instructions or
held by the Trustee as Custodian.
Members of, or participants
in, the Depositary (“Agent Members”) shall have no rights under the Indenture with respect to any Global Note held
on their behalf by the Depositary or by the Trustee as Custodian or under such Global Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from
giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary
and its Agent Members, the operation of customary practices of such Depositary governing the exercise of the rights of a holder of a
beneficial interest in any Global Note. The registered Holder of a Global Note may grant proxies and otherwise authorize any Person,
including Agent Members and Persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take
under this Indenture or the Notes.
(d) Definitive
Notes. Except as provided in Section 2.2 or Section 2.3 of this Appendix A, owners of beneficial interests in Global Notes
shall not be entitled to receive physical delivery of Definitive Notes.
Section 2.2 Transfer
and Exchange.
(a) Transfer
and Exchange of Definitive Notes for Definitive Notes. When Definitive Notes are presented to the Security Registrar with a request:
(i) to
register the transfer of such Definitive Notes; or
(ii) to
exchange such Definitive Notes for an equal principal amount of Definitive Notes of other authorized denominations,
the Security Registrar shall register the transfer
or make the exchange as requested if its reasonable requirements for such transaction are met; provided, however, that
the Definitive Notes surrendered for transfer or exchange:
(A) shall
be duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Security Registrar,
duly executed by the Holder thereof or his attorney duly authorized in writing; and
(B) in
the case of Transfer Restricted Notes, they are being transferred or exchanged pursuant to an effective registration statement under
the Securities Act or pursuant to Section 2.2(b) of this Appendix A or otherwise in accordance with the Restricted Notes
Legend, and are accompanied by a certification from the transferor in the form provided on the reverse side of the Form of Note
in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions,
certifications and other information as may be requested pursuant thereto.
(b) Restrictions
on Transfer of a Definitive Note for a Beneficial Interest in a Global Note. A Definitive Note may not be exchanged for a beneficial
interest in a Global Note except upon satisfaction of the requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by a written instrument of transfer in form reasonably satisfactory to the Company and the Security Registrar,
together with:
(i) a
certification from the transferor in the form provided on the reverse side of the Form of Note in Exhibit A for exchange
or registration of transfers and, as applicable, delivery of such legal opinions, certifications and other information as may be requested
pursuant thereto; and
(ii) written
instructions directing the Trustee to make, or to direct the Custodian to make, an adjustment on its books and records with respect to
such Global Note to reflect an increase in the aggregate principal amount of the Notes represented by the Global Note, such instructions
to contain information regarding the Depositary account to be credited with such increase,
the Trustee shall cancel such Definitive Note
and cause, or direct the Custodian to cause, in accordance with the standing instructions and procedures existing between the Depositary
and the Custodian, the aggregate principal amount of Notes represented by the Global Note to be increased by the aggregate principal
amount of the Definitive Note to be exchanged and shall credit or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Global Note equal to the principal amount of the Definitive Note so canceled. If the applicable
Global Note is not then outstanding, the Company shall issue and the Trustee shall authenticate, upon a Company Order, a new applicable
Global Note in the appropriate principal amount.
(c) Transfer
and Exchange of Global Notes.
(i) The
transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with this
Indenture (including applicable restrictions on transfer set forth in Section 2.2(d) of this Appendix A, if any) and the procedures
of the Depositary therefor. A transferor of a beneficial interest in a Global Note shall deliver to the Security Registrar a written
order given in accordance with the Depositary’s procedures containing information regarding the participant account of the Depositary
to be credited with a beneficial interest in such Global Note, or another Global Note and such account shall be credited in accordance
with such order with a beneficial interest in the applicable Global Note and the account of the Person making the transfer shall be debited
by an amount equal to the beneficial interest in the Global Note being transferred.
(ii) If
the proposed transfer is a transfer of a beneficial interest in one Global Note to a beneficial interest in another Global Note, the
Security Registrar shall reflect on its books and records the date and an increase in the Principal Amount At Maturity of the Global
Note to which such interest is being transferred in an amount equal to the Principal Amount At Maturity of the interest to be so transferred,
and the Security Registrar shall reflect on its books and records the date and a corresponding decrease in the Principal Amount At Maturity
of the Global Note from which such interest is being transferred.
(iii) Notwithstanding
any other provisions of this Appendix A (other than the provisions of Section 2.3 of this Appendix A), a Global Note may not be
transferred except as a whole and not in part if the transfer is 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.
(d) Restrictions
on Transfer of Global Notes; Voluntary Exchange of Interests in Transfer Restricted Global Notes for Interests in Unrestricted Global
Notes.
(i) Transfers
by an owner of a beneficial interest in a Rule 144A Global Note or an IAI Global Note to a transferee who takes delivery of such
interest through another Transfer Restricted Global Note shall be made in accordance with the Applicable Procedures and the Restricted
Notes Legend and only upon receipt by the Trustee of a certification from the transferor in the form provided on the reverse side of
the Form of Note in Exhibit A for exchange or registration of transfers and, as applicable, delivery of such legal opinions,
certifications and other information as may be requested pursuant thereto. In addition, in the case of a transfer of a beneficial interest
in a Regulation S Global Note, or a Rule 144A Global Note for an interest in an IAI Global Note, the transferee must furnish a signed
letter substantially in the form of Exhibit B to the Trustee.
(ii) Prior
to the expiration of the applicable Distribution Compliance Period, (A) each Regulation S Global Note shall be a temporary global
security for purposes of Rules 903 and 904 under the Securities Act, whether or not designated as such on the face of such Note,
and (B) beneficial ownership interests in such Regulation S Global Note may only be held through Euroclear or Clearstream. During
the applicable Distribution Compliance Period, beneficial ownership interests in a Regulation S Global Note may only be sold, pledged
or transferred through Euroclear or Clearstream in accordance with the Applicable Procedures, the Restricted Notes Legend on such Regulation
S Global Note and any applicable securities laws of any state of the U.S. Prior to the expiration of the applicable Distribution Compliance
Period, transfers by an owner of a beneficial interest in the Regulation S Global Note to a transferee who takes delivery of such interest
through a Rule 144A Global Note or an IAI Global Note shall be made only in accordance with the Applicable Procedures and the Restricted
Notes Legend and upon receipt by the Trustee of a written certification from the transferor of the beneficial interest in the form provided
on the reverse side of the Form of Note in Exhibit A for exchange or registration of transfers. Such written certification
shall no longer be required after the expiration of the applicable Distribution Compliance Period. Upon the expiration of the applicable
Distribution Compliance Period, beneficial ownership interests in the Regulation S Global Note shall be transferable in accordance with
applicable law and the other terms of this Indenture.
(iii) Upon
the expiration of the applicable Distribution Compliance Period, beneficial interests in the Regulation S Global Note may be exchanged
for beneficial interests in an Unrestricted Global Note upon certification in the form provided on the reverse side of the Form of
Note in Exhibit A for an exchange from a Regulation S Global Note to an Unrestricted Global Note.
(iv) Beneficial
interests in a Transfer Restricted Note that is a Rule 144A Global Note or an IAI Global Note may be exchanged for beneficial interests
in an Unrestricted Global Note if the Holder certifies in writing to the Security Registrar that its request for such exchange is in
respect of a transfer made in reliance on Rule 144 (such certification to be in the form set forth on the reverse side of the Form of
Note in Exhibit A) and/or upon delivery of such legal opinions, certifications and other information as the Company or the
Trustee may reasonably request.
(v) If
no Unrestricted Global Note is outstanding at the time of a transfer contemplated by the preceding clauses (iii) and (iv), the Company
shall issue and the Trustee shall authenticate, upon a Company Order, a new Unrestricted Global Note in the appropriate principal amount.
(e) Legends.
(i) Except
as permitted by Section 2.2(d), this Section 2.2(e) and Section 2.2(i) of this Appendix A, each Note certificate
evidencing the Global Notes and the Definitive Notes (and all Notes issued in exchange therefor or in substitution thereof) shall bear
a legend in substantially the following form (each defined term in the legend being defined as such for purposes of the legend only)
(“Restricted Notes Legend”):
THIS NOTE HAS NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION.
NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION.
[IN THE CASE OF IAI NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS (A) A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), OR (B) AN INSTITUTIONAL “ACCREDITED INVESTOR” (AS DEFINED
IN RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT), AND AGREES THAT WITHIN THE TIME PERIOD REFERRED
TO UNDER RULE 144 (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d) UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES
ACT AS IN EFFECT ON THE DATE OF THE TRANSFER OF THIS NOTE, TO OFFER, RESELL OR OTHERWISE TRANSFER THIS NOTE] [IN THE CASE OF RULE
144A NOTES AND REGULATION S NOTES: THE HOLDER OF THIS NOTE, BY ITS ACCEPTANCE HEREOF, AGREES ON ITS OWN BEHALF AND ON BEHALF OF ANY
INVESTOR ACCOUNT FOR WHICH IT HAS PURCHASED SECURITIES, TO OFFER, SELL OR OTHERWISE TRANSFER SUCH NOTE, PRIOR TO THE DATE (THE “RESALE
RESTRICTION TERMINATION DATE”) THAT IS [IN THE CASE OF RULE 144A NOTES: ONE YEAR AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS NOTE (OR ANY PREDECESSOR
OF SUCH NOTE)] [IN THE CASE OF REGULATION S NOTES: 40 DAYS AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF AND THE DATE
ON WHICH THIS NOTE (OR ANY PREDECESSOR OF SUCH NOTE) WAS FIRST OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT) IN RELIANCE ON REGULATION S], ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT
TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE
FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT REASONABLY BELIEVES IS A “QUALIFIED
INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S.
PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL
“ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT
A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN
EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF AT LEAST $250,000 OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER,
SALE OR TRANSFER PURSUANT TO CLAUSES (D), (E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/ OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. [IN THE CASE OF REGULATION S NOTES: BY ITS ACQUISITION HEREOF, THE HOLDER HEREOF REPRESENTS THAT IT IS
NOT A U.S. PERSON NOR IS IT PURCHASING FOR THE ACCOUNT OF A U.S. PERSON AND IS ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT.]]
Each Definitive Note shall bear the following
additional legend (“Definitive Notes Legend”):
IN CONNECTION WITH ANY TRANSFER, THE
HOLDER WILL DELIVER TO THE SECURITY REGISTRAR SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH SECURITY REGISTRAR MAY REASONABLY
REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
Each Global Note shall bear the following additional
legend (“Global Notes Legend”):
UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE COMPANY 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 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.
TRANSFERS OF THIS GLOBAL NOTE SHALL
BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE
AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF.
Each Note issued with original issue discount
will also bear the following additional legend (“OID Notes Legend”):
THIS NOTE HAS BEEN ISSUED WITH “ORIGINAL
ISSUE DISCOUNT” (WITHIN THE MEANING OF SECTION 1273 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED) FOR U.S. FEDERAL INCOME
TAX PURPOSES. UPON WRITTEN REQUEST, THE COMPANY WILL PROMPTLY MAKE AVAILABLE TO ANY HOLDER OF THIS NOTE THE FOLLOWING INFORMATION: (1) THE
ISSUE PRICE AND DATE OF THE NOTE, (2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE AND (3) THE YIELD TO MATURITY OF THE
NOTE. HOLDERS SHOULD CONTACT THE CHIEF FINANCIAL OFFICER OF THE COMPANY AT TWO NEWTON PLACE, 255 WASHINGTON STREET, SUITE 300, NEWTON,
MA 02458-1634.
(ii) Upon
any sale or transfer of a Transfer Restricted Note that is a Definitive Note, the Security Registrar shall permit the Holder thereof
to exchange such Transfer Restricted Note for a Definitive Note that does not bear the Restricted Notes Legend and the Definitive Notes
Legend and rescind any restriction on the transfer of such Transfer Restricted Note if the Holder certifies in writing to the Security
Registrar that its request for such exchange is in respect of a transfer made in reliance on Rule 144 (such certification to be
in the form set forth on the reverse side of the Form of Note in Exhibit A) and provides such legal opinions, certifications
and other information as the Company or the Trustee may reasonably request.
(f) Cancellation
or Adjustment of Global Note. At such time as all beneficial interests in a Global Note have either been exchanged for Definitive
Notes, transferred in exchange for an interest in another Global Note, redeemed, repurchased or canceled, such Global Note shall be returned
by the Depositary to the Trustee for cancellation or retained and canceled by the Trustee. At any time prior to such cancellation, if
any beneficial interest in a Global Note is exchanged for Definitive Notes, transferred in exchange for an interest in another Global
Note, redeemed, repurchased or canceled, the principal amount of Notes represented by such Global Note shall be reduced and an adjustment
shall be made on the books and records of the Security Registrar (if it is then the Custodian for such Global Note) with respect to such
Global Note, by the Security Registrar or the Custodian, to reflect such reduction.
(g) Obligations
with Respect to Transfers and Exchanges of Notes.
(i) To
permit registrations of transfers and exchanges, the Company shall execute and the Trustee shall authenticate, Definitive Notes and Global
Notes at the Security Registrar’s request.
(ii) No
service charge shall be made for any registration of transfer or exchange of Notes, but the Company 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 Notes,
other than exchanges pursuant to Section 3.04, 9.06 or 11.07 not involving any transfer.
(iii) Prior
to the due presentation for registration of transfer of any Note, the Company, the Trustee, the Paying Agent or the Security Registrar
shall deem and treat the person in whose name a Note is registered as the absolute owner of such Note for the purpose of receiving payment
of principal, premium, if any, and interest on such Note and for all other purposes whatsoever, whether or not such Note is overdue,
and none of the Company, the Trustee, the Paying Agent or the Security Registrar shall be affected by notice to the contrary.
(iv) Every
Note presented or surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security
Registrar duly executed, by the Holder thereof or the attorney of such Holder duly authorized in writing.
(v) In
order to effect any transfer or exchange of an interest in any Transfer Restricted Note for an interest in a Note that does not bear
the Restricted Notes Legend and has not been registered under the Securities Act, if the Security Registrar so requests or if the Applicable
Procedures so require, an Opinion of Counsel, in form reasonably acceptable to the Security Registrar to the effect that no registration
under the Securities Act is required in respect of such exchange or transfer or the re-sale of such interest by the beneficial holder
thereof, shall be required to be delivered to the Security Registrar and the Trustee.
(h) No
Obligation of the Trustee.
(i) The
Trustee shall have no responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary
or any other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof,
with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other
Person (other than the Depositary) of any notice (including any notice of redemption or repurchase) or the payment of any amount, under
or with respect to such Notes. All notices and communications to be given to the Holders and all payments to be made to Holders under
the Notes shall be given or made only to the registered Holders (which shall be the Depositary or its nominee in the case of a Global
Note). The rights of beneficial owners in any Global Note shall be exercised only through the Depositary subject to the applicable rules and
procedures of the Depositary. The Trustee may rely and shall be fully protected in relying upon information furnished by the Depositary
with respect to its members, participants and any beneficial owners.
(ii) The
Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between
or among Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Section 2.3 Definitive
Notes.
(a) Except
as provided below, owners of beneficial interests in Global Notes shall not be entitled to receive Definitive Notes. A Global Note deposited
with the Depositary or with the Trustee as Custodian pursuant to Section 2.1 may be transferred to the beneficial owners thereof
in the form of Definitive Notes in an aggregate principal amount equal to the principal amount of such Global Note, in exchange for such
Global Note, only if such transfer complies with Section 2.2 of this Appendix A and (i) the Depositary notifies the Company
that it is unwilling or unable to continue as a Depositary for such Global Note or if at any time the Depositary ceases to be a “clearing
agency” registered under the Exchange Act and, in each case, a successor depositary is not appointed by the Company within 90 days
of such notice or after the Company becomes aware of such cessation, (ii) an Event of Default has occurred and is continuing and
the Security Registrar has received a request from the Depositary or (iii) the Company, in its sole discretion and subject to the
procedures of the Depositary, notifies the Trustee in writing that it elects to cause the issuance of Definitive Notes under this Indenture.
In addition, any Affiliate of the Company or any Subsidiary Guarantor that is a beneficial owner of all or part of a Global Note may
have such Affiliate’s beneficial interest transferred to such Affiliate in the form of a Definitive Note by providing a written
request to the Company and the Trustee and such Opinions of Counsel, certificates or other information as may be required by this Indenture
or the Company or Trustee. Notwithstanding anything to the contrary in this Section 2.3, no Regulation S Global Note may be exchanged
for a Definitive Note until the end of the Distribution Compliance Period applicable to such Regulation S Global Note and receipt by
the Trustee and the Company of any certificates required by either of them pursuant to Rule 903(b)(3)(ii)(B) under the Securities
Act.
(b) Any
Global Note that is transferable to the beneficial owners thereof pursuant to this Section 2.3 shall be surrendered by the Depositary
to the Trustee, to be so transferred, in whole or from time to time in part, without charge, and the Trustee shall authenticate and deliver,
upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Definitive Notes of authorized denominations.
Any portion of a Global Note transferred pursuant to this Section 2.3 shall be executed, authenticated and delivered only in minimum
denominations of $2,000 and integral multiples of $1,000 in excess thereof and registered in such names as the Depositary shall direct.
Any Definitive Note delivered in exchange for an interest in a Global Note that is a Transfer Restricted Note shall, except as otherwise
provided by Section 2.2(d) of this Appendix A, bear the Restricted Notes Legend.
(c) In
the event of the occurrence of any of the events specified in Section 2.3(a) of this Appendix A, the Company shall promptly
make available to the Trustee a reasonable supply of Definitive Notes in fully registered form without interest coupons.
EXHIBIT A
FORM OF NOTE
[Form of Face of Note]
[Insert the Restricted Notes Legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert the Global Notes Legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert the Definitive Notes Legend, if applicable,
pursuant to the provisions of the Indenture]
[Insert the OID Notes Legend, if applicable, pursuant
to the provisions of the Indenture.]
CUSIP [●]
ISIN [●]
[IAI] [RULE 144A][REGULATION S] GLOBAL NOTE
DIVERSIFIED HEALTHCARE TRUST
No.
[●]
SENIOR SECURED NOTE DUE 2026
Diversified Healthcare Trust, a real estate investment
trust duly organized and existing under the laws of Maryland (herein called the “Company”, which term includes any
successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to____________________________,
or registered assigns, the Principal Amount At Maturity of $_______________________, as revised by the Schedule of Increases and Decreases
in the Global Note attached hereto.
Additional provisions of this Note are set forth
on the other side of this Note.
IN WITNESS WHEREOF, the Company
has caused this instrument to be duly executed.
Dated: |
DIVERSIFIED HEALTHCARE TRUST |
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By: |
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Name: |
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Title: |
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CERTIFICATE OF AUTHENTICATION |
This
is one of the Notes referred to in the within-mentioned Indenture.
Dated:
|
U.S. BANK TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee |
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By: |
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Name: |
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Title: |
[Form of Reverse of Note]
1. General.
The Company issued this Note under an Indenture, dated as of December 21, 2023 (as amended, supplemented or otherwise modified from
time to time, the “Indenture”), among, inter alios, the Company, the Initial Subsidiary Guarantors and U.S.
Bank Trust Company, National Association, as Trustee and Collateral Agent. The terms of this Note include those stated in the Indenture.
Capitalized terms used but not defined herein have the meaning given to them in the Indenture. 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.
2. Accretion.
The Accreted Value of this Note will increase from the Issue Date until January 15, 2026, on the basis set forth below, such that
the Accreted Value will equal the stated Principal Amount At Maturity on January 15, 2026 and will mean, as of any date, the amount
provided below for each $1,000 Principal Amount At Maturity of Note:
(i) if
the Specified Date occurs on one of the following dates, the Accreted Value will equal the amount set forth below for such Semi-Annual
Accrual Date:
Semi-Annual Accrual Date | |
Accreted Value | |
January 15, 2024 | |
$ | 803.40 | |
July 15, 2024 | |
$ | 848.59 | |
January 15, 2025 | |
$ | 896.33 | |
July 15, 2025 | |
$ | 946.75 | |
January 15, 2026 | |
$ | 1,000.00 | |
(ii) if
the Specified Date occurs before the first Semi-Annual Accrual Date, the Accreted Value will equal the sum of (a) the original issue
price (for each $1,000 Principal Amount At Maturity) of a Note and (b) the amount equal to the product of (x) the Accreted
Value for the first Semi-Annual Accrual Date less such original issue price multiplied by (y) a fraction, the numerator of which
is the number of days from the Issue Date to the Specified Date, using a 360-day year of twelve 30-day months, and the denominator of
which is the number of days from the Issue Date to the first Semi-Annual Accrual Date, using a 360-day year of twelve 30-day months;
or
(iii) if
the Specified Date occurs between two Semi-Annual Accrual Dates, the Accreted Value will equal the sum of (a) the Accreted Value
for the Semi-Annual Accrual Date immediately preceding such Specified Date and (b) an amount equal to the product of (x) the
Accreted Value for the immediately following Semi-Annual Accrual Date less the Accreted Value for the Semi-Annual Accrual Date immediately
preceding such Specified Date multiplied by (y) a fraction, the numerator of which is the number of days from the immediately preceding
Semi-Annual Accrual Date to the Specified Date, using a 360-day year of twelve 30-day months, and the denominator of which is 180.
3. Extension
Period. The Company, at its option and in its sole discretion, and subject to compliance with Section 10.07 of the Indenture,
may elect to extend the Stated Maturity of this Note from January 15, 2026 to January 15, 2027 by providing Holders with notice
of such election and depositing with the Trustee or with a Paying Agent for distribution to Holders the Extension Fee on a pro rata basis,
in each case, in accordance with Section 2.01 of the Indenture. If the Company validly exercises the Maturity Extension and pays
the Extension Fee in accordance with Section 2.01 of the Indenture, the Stated Maturity of this Note will, automatically and without
further action on the part of the Company, the Trustee or the Holders, become January 15, 2027.
4. Extension
Period Interest. During the Extension Period, interest on this Note shall accrue from and including January 15, 2026 to, but
excluding, January 15, 2027, and shall be payable in cash at an initial rate equal to 11.25% per annum, which interest rate shall
increase by fifty (50) basis points to 11.75% per annum from and including April 15, 2026, and shall continue to increase by fifty
(50) basis points every 90 days thereafter that the Notes remain outstanding during the Extension Period. During the Extension Period,
cash interest on this Note will be payable semi-annually in arrears on July 15, 2026 and January 15, 2027, commencing July 15,
2026, to the Persons in whose names the Note is registered in the Security Register at the close of business on the Record Date for such
cash interest, which shall be July 1 or January 1 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
During the Extension Period,
interest on this Note will be calculated on the basis of the actual number of days in each Interest Period, assuming a 360-day year.
If any scheduled Interest Payment Date (other than the Stated Maturity), is not a Business Day, such Interest Payment Date will be postponed
to the next day that is a Business Day; provided that if that Business Day falls in the next succeeding calendar month, such Interest
Payment Date will be the immediately preceding Business Day. If any such Interest Payment Date (other than the Stated Maturity), is postponed
or brought forward as described above, the payment of interest due on such postponed or brought forward Interest Payment Date will include
interest accrued to but excluding such postponed or brought forward Interest Payment Date. If the applicable Stated Maturity or date
of redemption or repayment of the Notes is not a Business Day, the Company may pay interest and principal on the next succeeding Business
Day, but interest on that payment will not accrue during the period from and after the Stated Maturity or date of redemption or repayment
of this Note.
5. Method
of Payment. By no later than 11:00 a.m. Eastern Time on the date on which any principal (or if prior to January 15, 2026,
the Accreted Value) of, premium, if any, and, on or after the Extension Date, interest on any Note is due and payable, the Company shall
deposit with the Paying Agent a sum sufficient in immediately available funds to pay such principal (or if prior to January 15,
2026, the Accreted Value), premium, if any, and, on or after the Extension Date, interest when due. Cash interest on any Note which is
payable, and is timely paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Note (or
one or more Predecessor Notes) is registered at the close of business on the preceding July 1 and January 1 at the office or
agency of the Company maintained for such purpose pursuant to Section 10.02 of the Indenture. The principal (or if prior to January 15,
2026, the Accreted Value) of (and premium, if any) and, on or after the Extension Date, interest on the Note shall be payable at the
office or agency of Paying Agent or Security Registrar designated by the Company maintained for such purpose in the United States or
at such other office or agency of the Company as may be maintained for such purpose pursuant to Section 10.03 of the Indenture;
provided, however, that, at the option of the Company, the principal (or if prior to January 15, 2026, the Accreted Value)
of (and premium, if any) and, on or after the Extension Date, interest, may be paid by (i) check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Security Register or (ii) wire transfer to an account located in the United
States maintained by the payee, subject to the last sentence of this paragraph. Payments in respect of Notes represented by a Global
Note (including principal (or if prior to January 15, 2026, the Accreted Value), premium, if any, and, on or after the Extension
Date, interest) shall be made by wire transfer of immediately available funds to the accounts specified by The Depository Trust Company
or any successor depository. Payments of any principal (or if prior to January 15, 2026, the Accreted Value) of, premium, if any,
and, on or after the Extension Date, interest on any Note is due and payable shall be made without withholding and free and clear of
any taxes, except as required by applicable law.
6. Paying
Agent and Security Registrar. Initially, U.S. Bank Trust Company, National Association or one of its Affiliates will act as Paying
Agent and Security Registrar. The Company or any of its Affiliates may act as Paying Agent, Security Registrar or co-Security Registrar.
7. Optional
Redemption. The Notes will be subject to redemption in whole at any time or in part from time to time prior to their maturity at
the option of the Company upon not less than 10 nor more than 60 days’ notice to each Holder of Notes to be redeemed at its address
appearing in the Security Register or, in the case of any Note that is a Global Note, in accordance with the procedures of the Depositary
and its participants in effect from time to time, at a Redemption Price equal to the sum of 100% of the outstanding principal amount
of the Notes being redeemed, plus, in the case of any Notes redeemed during the Extension Period, accrued and unpaid interest, if any,
to, but not including, the applicable Redemption Date. Any such redemption may, at the Company’s discretion, be subject to satisfaction
of one more conditions precedent as provided in Section 11.05 of the Indenture.
8. Mandatory
Redemption. The Notes will be subject to redemption in whole at any time or in part from time to time prior to their maturity pursuant
to a Collateral Asset Sale Redemption and Event of Loss Redemption under Section 10.11 of the Indenture. Other than as set forth
in the immediately preceding sentence, the Notes will not be subject to mandatory redemption or any sinking fund payments. However, under
certain circumstances in connection with the occurrence of a Change of Control, the Company may be required to offer to the repurchase
the Notes as provided for under Section 10.12 of the Indenture.
9. Discharge
and Defeasance. The Indenture contains provisions for discharge or defeasance at any time of the entire indebtedness of this Notes
or certain restrictive covenants and Events of Default with respect to this Note, in each case upon compliance with certain conditions
set forth in the Indenture.
10. Defaults
and Remedies. If an Event of Default with respect to the Notes shall occur and be continuing, the principal at Maturity or Accreted
Value, as applicable, of the Notes, plus accrued and unpaid interest during any Extension Period thereon, may be declared due and payable
in the manner and with the effect provided in the Indenture.
11. Actions
of Holders. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the
rights and obligations of the Company and the rights of the Holders of the Notes to be affected under the Indenture at any time by the
Company and the Trustee and the Collateral Agent with the consent of the Holders of not less than a majority in Principal Amount At Maturity
of the Outstanding Notes at the time to be affected. The Indenture also contains provisions permitting the Holders of specified percentages
in principal amount of the Outstanding Notes at the time, on behalf of the Holders of all Notes, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note
issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
As
provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding
with respect to the Indenture or this Note or for the appointment of a receiver or trustee or for any other remedy thereunder, unless
such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes, the Holders
of not less than a majority in Principal Amount At Maturity of the Outstanding Notes at the time shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a majority in principal amount of Outstanding Notes at the time a direction
inconsistent with such request, and shall have failed to institute any such proceeding for 60 days after receipt of such notice, request
and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment
of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
12. Payments
Not Impaired. No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay the principal or Accreted Value of (and premium, if any), as applicable,
and on or after the Extension Date, interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.
13. Denominations,
Transfer, Exchange. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note
is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company
in any place where the principal of and any premium and interest on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney
duly authorized in writing, and thereupon one or more new Notes and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The
Notes are issuable only in registered form without coupons in denominations of $2,000 and integral multiples of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like aggregate Principal
Amount At Maturity of Notes and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be
made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
14. Persons
Deemed Owners. Prior to due presentment of this Note for registration of transfer, the Company, the Subsidiary Guarantors, the Trustee
and any agent of the Company, any Subsidiary Guarantor or the Trustee may treat the Person in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and neither the Company, the Subsidiary Guarantors, the Trustee nor
any such agent shall be affected by notice to the contrary.
15. Unclaimed
Money. Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal
or Accreted Value (and premium, if any), as applicable, and, on or after the Extension Date, any cash interest on, any Notes and remaining
unclaimed for two years after such principal or Accreted Value (and premium, if any), as applicable, and, on or after the Extension Date,
cash interest, has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as an unsecured general creditor, look only to the Company
for payment thereof.
16. Subsidiary
Guarantees. The Notes will be entitled to the benefits of certain Subsidiary Guarantees made for the benefit of the Holders of the
Notes. Reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and obligations
thereunder of the Subsidiary Guarantors, the Trustee and the Holders.
17. Security.
This Note and the other Notes will be secured by security interests on the Collateral, subject to Permitted Liens and any other limitation
on the extent to which the Collateral secures the Notes Obligations contemplated by the Security Documents, as set forth in Article Fourteen
of the Indenture.
18. No
Recourse Against Others. A trustee, director, officer, employee, incorporator, member or shareholder, as such, of the Company or
any Subsidiary Guarantor shall not have any liability for any obligations of the Company or the Subsidiary Guarantors under this Note,
the other Notes, the Guarantees or the Indenture or for any claim based on, in respect of, or by reason of, such obligations or their
creation. By accepting a Note, each Holder shall waive and release all such liability. The waiver and release are part of the consideration
for issuance of the Notes.
19. No
Personal Liability. THE AMENDED AND RESTATED DECLARATION OF TRUST ESTABLISHING DIVERSIFIED HEALTHCARE TRUST (FORMERLY KNOWN AS SENIOR
HOUSING PROPERTIES TRUST), DATED SEPTEMBER 20, 1999, AS AMENDED AND SUPPLEMENTED, AS FILED WITH THE STATE DEPARTMENT OF ASSESSMENTS AND
TAXATION OF MARYLAND, PROVIDES THAT NO TRUSTEE, OFFICER, SHAREHOLDER, EMPLOYEE OR AGENT OF DIVERSIFIED HEALTHCARE TRUST SHALL BE HELD
TO ANY PERSONAL LIABILITY, JOINTLY OR SEVERALLY, FOR ANY OBLIGATION OF, OR CLAIM AGAINST, DIVERSIFIED HEALTHCARE TRUST. ALL PERSONS DEALING
WITH DIVERSIFIED HEALTHCARE TRUST IN ANY WAY SHALL LOOK ONLY TO THE ASSETS OF DIVERSIFIED HEALTHCARE TRUST FOR THE PAYMENT OF ANY SUM
OR THE PERFORMANCE OF ANY OBLIGATION.
20. Authentication.
This Note shall not be valid until an authorized officer of the Trustee (or an authenticating agent) manually signs the certificate of
authentication on the other side of this Note.
21. 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 entireties), 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).
22. ISIN
and/or CUSIP Numbers. The Company may cause ISIN and/or CUSIP numbers to be printed on the Notes, and if so the Trustee shall use
ISIN and/or CUSIP 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 on the Notes.
23. Governing
Law. This Note shall be governed by, and construed in accordance with, the laws of the state of New York.
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or
(we) assign and transfer this Note to: |
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(Insert
assignee’s legal name) |
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(Insert
assignee’s soc. sec. or tax I.D. no.) |
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(Print
or type assignee’s name, address and zip code) |
and
irrevocably appoint |
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to
transfer this Note on the books of the Company. The agent may substitute another to act for him. |
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Date:
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Your Signature: |
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(Sign exactly as your name appears on the face
of this Note) |
Signature Guarantee*:
* Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor acceptable to the Trustee).
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR
REGISTRATION OF TRANSFERS OF TRANSFER RESTRICTED NOTES
This
certificate relates to $__________ Principal Amount At Maturity of Notes held in (check applicable space) ____ book-entry or _____
definitive form by the undersigned.
The undersigned (check one
box below):
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requested the Trustee by written order to deliver in exchange for its beneficial interest
in a Global Note held by the Depositary a Note or Notes in definitive, registered form of
authorized denominations and an aggregate Principal Amount At Maturity equal to its beneficial
interest in such Global Note (or the portion thereof indicated above) in accordance with
the Indenture; or |
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requested the Trustee by written order to exchange or register the transfer of a Note or
Notes. |
In connection with any transfer
of any of the Notes evidenced by this certificate, the undersigned confirms that such Notes are being transferred in accordance with
its terms:
CHECK ONE BOX BELOW
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to
the Company or subsidiary thereof; or |
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to
the Security Registrar for registration in the name of the Holder, without transfer; or |
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pursuant
to an effective registration statement under the Securities Act of 1933, as amended (the
“Securities Act”); or |
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to
a Person that the undersigned reasonably believes is a “qualified institutional buyer”
(as defined in Rule 144A under the Securities Act (“Rule 144A”))
that purchases for its own account or for the account of a qualified institutional buyer
and to whom notice is given that such transfer is being made in reliance on Rule 144A,
in each case pursuant to and in compliance with Rule 144A; or |
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pursuant
to offers and sales to non-U.S. persons that occur outside the United States within the meaning
of Regulation S under the Securities Act (and if the transfer is being made prior to the
expiration of the Distribution Compliance Period, the Notes shall be held immediately thereafter
through Euroclear or Clearstream); or |
| (6) | ¨ |
to
an institutional “accredited investor” (as defined in Rule 501(a)(1), (2),
(3) or (7) under the Securities Act) that has furnished to the Trustee a signed
letter containing certain representations and agreements; or |
| (7) | ¨ |
pursuant
to Rule 144 under the Securities Act; or |
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pursuant
to another available exemption from registration under the Securities Act. |
Unless one of the boxes is checked,
the Trustee will refuse to register any of the Notes evidenced by this certificate in the name of any Person other than the registered
Holder thereof; provided, however, that if box (5), (6), (7) or (8) is checked, the Company or the Trustee may require, prior
to registering any such transfer of the Notes, such legal opinions, certifications and other information as the Company or the Trustee
has reasonably requested to confirm that such transfer is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act.
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Your Signature |
Date: |
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Signature of Signature Guarantor |
TO BE COMPLETED BY PURCHASER IF (4) ABOVE
IS CHECKED.
The undersigned represents
and warrants that it is purchasing this Note for its own account or an account with respect to which it exercises sole investment discretion
and that it and any such account is a “qualified institutional buyer” within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined not to request such information and that it is
aware that the transferor is relying upon the undersigned’s foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Date: |
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NOTICE: |
To be executed by an executive officer |
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Name: |
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Title |
Signature
Guarantee*:
| * | Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor acceptable to the Trustee). |
TO BE COMPLETED IF THE HOLDER REQUIRES AN EXCHANGE
FROM A REGULATION S GLOBAL NOTE TO AN UNRESTRICTED GLOBAL NOTE, PURSUANT TO SECTION 2.2(d)(iii) OF APPENDIX A TO THE INDENTURE1
The undersigned represents and warrants that either:
| ¨ | the
undersigned is not a dealer (as defined in the Securities Act) and is a non-U.S. person (within
the meaning of Regulation S under the Securities Act); or |
| ¨ | the
undersigned is not a dealer (as defined in the Securities Act) and is a U.S. person (within
the meaning of Regulation S under the Securities Act) who purchased interests in the Notes
pursuant to an exemption from, or in a transaction not subject to, the registration requirements
under the Securities Act; or |
| ¨ | the
undersigned is a dealer (as defined in the Securities Act) and the interest of the undersigned
in this Note does not constitute the whole or a part of an unsold allotment to or subscription
by such dealer for the Notes. |
1 Include only for Regulation S Global Notes.
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL
NOTE*
The initial outstanding Principal
Amount At Maturity of this Global Note is $____________. The following exchanges of a part of this Global Note for an interest in another
Global Note or for a Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this Global
Note, have been made:
Date
of Exchange | |
Amount
of decrease in Principal Amount
at Maturity of this Global Note | |
Amount
of increase in Principal Amount at
Maturity of this Global
Note | |
Principal
Amount at Maturity of this Global Note following such decrease or increase | |
Signature
of authorized signatory of Trustee, Depositary or Custodian |
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| * | This schedule should be included only if the Note is issued in global form. |
Exhibit B
FORM OF
TRANSFEREE LETTER OF REPRESENTATION
Diversified Healthcare Trust
Two Newton Place, 255 Washington Street, Suite 300
Newton, MA, 02458-1634
Attention: General Counsel
Ladies and Gentlemen:
This
certificate is delivered to request a transfer of $[ ]
Principal Amount At Maturity of Senior Secured Notes due 2026 (the “Notes”) of Diversified Healthcare Trust (the “Company”).
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name: |
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Address: |
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Taxpayer ID Number: |
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The undersigned represents and warrants to you that:
1. We
are an institutional “accredited investor” (as defined in Rule 501(a)(1), (2), (3) or (7) under the Securities
Act of 1933, as amended (the “Securities Act”)), purchasing for our own account or for the account of such an institutional
“accredited investor” at least $250,000 Principal Amount At Maturity of the Notes, and we are acquiring the Notes, for investment
purposes and not with a view to, or for offer or sale in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable of evaluating the merits and risks of our investment
in the Notes, and we invest in or purchase securities similar to the Notes in the normal course of our business. We, and any accounts
for which we are acting, are each able to bear the economic risk of our or its investment.
2. We
understand that the Notes have not been registered under the Securities Act and, unless so registered, may not be sold except as permitted
in the following sentence. We agree on our own behalf and on behalf of any investor account for which we are purchasing Notes to offer,
sell or otherwise transfer such Notes prior to the date that is one year after the later of the date of original issue and the last date
on which the Company or any affiliate of the Company was the owner of such Notes (or any predecessor thereto) (the “Resale Restriction
Termination Date”) only in accordance with the Restricted Notes Legend (as such term is defined in the indenture under which
the Notes were issued) on the Notes and any applicable securities laws of any state of the United States. The foregoing restrictions
on resale will not apply subsequent to the Resale Restriction Termination Date. If any resale or other transfer of the Notes is proposed
to be made pursuant to Section 2.2(d) of Appendix A to the indenture under which the Notes were issued prior to the Resale
Restriction Termination Date, the transferor shall deliver a letter from the transferee substantially in the form of this letter to the
Company and the Trustee, which shall provide, among other things, that the transferee is an institutional “accredited investor”
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act and that it is acquiring such Notes for
investment purposes and not for distribution in violation of the Securities Act. Each purchaser acknowledges that the Company and the
Trustee reserve the right prior to the offer, sale or other transfer prior to the Resale Restriction Termination Date of the Notes with
respect to applicable transfers described in the Restricted Notes Legend to require the delivery of an opinion of counsel, certifications
and/or other information satisfactory to the Company and the Trustee.
Exhibit C
FORM OF SUPPLEMENTAL INDENTURE
SUPPLEMENTAL INDENTURE dated
as of [●], 20[●] (this “Supplemental Indenture”) by and among Diversified Healthcare Trust (the “Issuer”),
the other parties listed as New Guarantors on the signature pages hereto (each, a “New Guarantor” and, collectively,
the “New Guarantors”) and U.S. Bank Trust Company, National Association, as trustee (in such capacity, the “Trustee”).
W I T N E S E T H
WHEREAS,
the Issuer, the Trustee and the other parties thereto have heretofore executed and delivered an Indenture, dated as of December 21,
2023 (as amended, supplemented or otherwise modified from time to time, the “Indenture”), providing for the issuance
by the Issuer of $940,534,000 aggregate Principal Amount At Maturity of Senior Secured Notes due 2026 (the “Notes”).
WHEREAS, pursuant to Section 9.01
of the Indenture, the Issuer and the Trustee are authorized to execute and deliver this Supplemental Indenture; and
WHEREAS, all necessary acts
have been done to make this Supplemental Indenture a legal, valid and binding agreement of each New Guarantor in accordance with the
terms of this Supplemental Indenture.
NOW THEREFORE, in consideration
of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties mutually covenant
and agree for the equal and ratable benefit of the Holders as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Capitalized
Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
ARTICLE II
AGREEMENT TO BE BOUND
SECTION 2.1 Agreement
to Guarantee. The New Guarantor acknowledges that it has received and reviewed a copy of the Indenture and all other documents it
deems necessary to review in order to enter into this Supplemental Indenture, and acknowledges and agrees to (i) join and become
a party to the Indenture as indicated by its signature below; (ii) be bound by the Indenture, as of the date hereof, as if made
by, and with respect to, each signatory hereto; and (iii) perform all obligations and duties required of a Subsidiary Guarantor
pursuant to the Indenture. The New Guarantor hereby agrees to provide a Guarantee on the terms and subject to the conditions set forth
in the Indenture, including, but not limited to, Article Twelve thereof.
SECTION 2.2 Execution
and Delivery. The New Guarantor agrees that the Guarantee shall remain in full force and effect notwithstanding the absence of the
endorsement of any notation of such Guarantee on the Notes.
ARTICLE III
MISCELLANEOUS
SECTION
3.1 Governing
Law. THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 3.2 Severability.
In case any provision in this Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 3.3 Ratification.
Except as expressly amended hereby, the Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions
thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every
Holder heretofore or hereafter shall be bound hereby. The Trustee makes no representation or warranty as to the validity or sufficiency
of this Supplemental Indenture.
SECTION 3.4 Counterparts.
The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement. One signed copy is enough to prove this Supplemental Indenture. The exchange of copies of this Supplemental
Indenture and of signature pages by facsimile or other electronic transmission shall constitute effective execution and delivery
of this Supplemental Indenture as to the parties hereto. Signatures of the parties hereto transmitted by facsimile or other electronic
transmission shall be deemed to be their original signatures for all purposes.
SECTION 3.5 Effect
of Headings. The headings herein are convenience of reference only and shall not affect the construction hereof.
SECTION 3.6 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 New Guarantor.
SECTION 3.7 Benefits
Acknowledged. The New Guarantor’s Guarantee is subject to the terms and conditions set forth in the Indenture. The New Guarantor
acknowledges that it will receive direct and indirect benefits from the financing arrangements contemplated by the Indenture and this
Supplemental Indenture and that the guarantee and waivers made by it pursuant to its Note Guarantee and this Supplemental Indenture are
knowingly made in contemplation of such benefits.
SECTION 3.8 Successors.
All agreements of the New Guarantor in this Supplemental Indenture shall bind its successors, except as otherwise provided in this Supplemental
Indenture. All agreements of the Trustee in this Supplemental Indenture shall bind its successors.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties
hereto have caused this Supplemental Indenture to be duly executed, all as of the date first above written.
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ISSUER: |
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DIVERSIFIED HEALTHCARE TRUST |
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By: |
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NEW GUARANTORS: |
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[NEW GUARANTORS] |
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By: |
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TRUSTEE: |
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US BANK TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee |
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By: |
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Exhibit D
FORM OF MORTGAGE
(See attached.)
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(Space Above
For Recorder’s Use) |
RECORD AND RETURN TO:
[●]
MORTGAGE, ASSIGNMENT OF
LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING1
Dated as of [●], 2024
by and from
[●],
as mortgagor
to
U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,
in its capacity as Collateral Agent,
as mortgagee
Location of Property:
([Insert Address])
COLLATERAL IS OR INCLUDES FIXTURES
([Insert City, State and County])
1 NTD: Applicable changes to be made to the form to convert
to a Deed of Trust for applicable states. Individual mortgage to be broken out per property.
MORTGAGE, ASSIGNMENT OF
LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING
THIS MORTGAGE, ASSIGNMENT OF
LEASES AND RENTS, SECURITY AGREEMENT AND FIXTURE FILING (the “Security Instrument”), dated as of [●],
2024, is made by [●], a [●] having an office at Two Newton Place, 255 Washington Street, Suite 300,
Newton, Massachusetts (“Mortgagor”), in favor of U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, a national
banking organization, having an address at [One Federal Street, 3rd Floor Boston, Massachusetts 02110]2,
as mortgagee (in such capacity, together with its successors and/or assigns, “Mortgagee”).
RECITALS
A. WHEREAS,
Diversified Healthcare Trust, a real estate investment trust organized and existing under the laws of the State of Maryland (the “Company”)
having its principal office at Two Newton Place, 255 Washington Street, Suite 300, Newton, Massachusetts 02458, the other entities
listed on the signature pages of the Indenture (as hereinafter defined), and Mortgagee, as trustee and as notes collateral agent,
entered into that certain Indenture, dated as of December 21, 2023 (as the same may be amended, supplemented, modified or amended
and restated from time to time, the “Indenture”), whereby Senior Secured Notes due 2026 (the “Notes”)
have been issued by the Company, as issuer (the “Issuer”) in the aggregate principal amount at maturity of
$940,534,000. Mortgagor is a Subsidiary Guarantor party to the Indenture. Any capitalized term used but not defined herein shall have
the meaning ascribed thereto in the Indenture.
B. WHEREAS, Issuer
owns, directly or through its Subsidiaries, all of the issued and outstanding shares of Mortgagor.
C. WHEREAS,
Mortgagor has, pursuant to the Indenture, among other things, unconditionally guaranteed the Obligations.
D. WHEREAS,
Mortgagor will receive substantial benefits from the execution, delivery and performance of the Obligations under the Indenture and the
other Note Documents and is, therefore, willing to enter into this Security Instrument.
E. WHEREAS,
as a condition to the financial accommodations provided to Issuer under the Indenture, Mortgagee has required Mortgagor to execute and
deliver this Security Instrument.
F. WHEREAS,
this Security Instrument made and given by Mortgagor in favor of Mortgagee for the benefit of the Holders of the Notes to secure the
payment and performance of all of the Obligations.
NOW, THEREFORE, in consideration
of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Mortgagor, intending to be legally bound, covenants and agrees as follows:
2 NTD: To be confirmed by Trustee.
Article I
DEFINITIONS
Section 1.1 Definitions.
Capitalized terms used but not otherwise defined herein that are defined in the Indenture shall have the meanings ascribed to such terms
in the Indenture. As used herein, the following terms shall have the following meanings:
(a) “Holders
of the Notes”: Means the “Holders” as that term is defined in the Indenture.
(b) “Indebtedness”:
Means all of the following:
(i) the
obligations of Mortgagor under the Subsidiary Guarantee;
(ii) the
payment of all sums advanced pursuant to this Security Instrument to protect and preserve the Property and the lien and the security
interest created hereby; and
(iii) the
payment of all sums advanced and costs and expenses incurred by any one or more of Mortgagee and the Holders of the Notes in connection
with the Indebtedness or any part thereof in accordance with the indenture and the other Notes Documents, any renewal, extension, or
change of or substitution for the Indebtedness or any part thereof, or the acquisition or perfection of the security therefor, whether
made or incurred at the request of Mortgagor, Mortgagee or the Holders of the Notes.
THIS SECURITY INSTRUMENT SHALL CONTINUE TO SECURE
A GUARANTEE OF THE ENTIRE INDEBTEDNESS UP TO A MAXIMUM PRINCIPAL AMOUNT OF $940,534,000, UNTIL THE ENTIRE INDEBTEDNESS IS PAID IN FULL;
provided however, in no event shall this Security Instrument be deemed to secure any direct obligations of the Issuer pursuant
to the Indenture or any notes issued in connection therewith, but shall secure the Indebtedness, being the guaranty obligations of Mortgagor
pursuant to the Subsidiary Guarantee.
(c) “Property”:
Means all of Mortgagor’s right, title and interest in, to and under (1) the real property more particularly described in Exhibit A
attached hereto and incorporated herein by this reference, together with any greater or additional estate therein as hereafter may
be acquired by Mortgagor (collectively, the “Land”), (2) all improvements now owned or hereafter acquired
by Mortgagor, now or at any time situated, placed or constructed upon the Land (collectively, the “Improvements”),
(3) all leases and subleases of space, tenancies, franchise agreements, licenses, occupancy or concession agreements now existing
or hereafter entered into, whether or not of record, relating in any manner to the Land and any and all amendments, modifications, supplements,
replacements, extensions and renewals of any thereof, whether now in effect or hereafter coming into effect (collectively, the “Leases”),
(4) any and all rents, additional rents, royalties, cash, guaranties, letters of credit, bonds, sureties or securities deposited
under any Lease to secure performance of the tenant’s obligations thereunder, revenues, earnings, profits and income, advance rental
payments, payments incident to assignment, sublease or surrender of a Lease, claims for forfeited deposits and claims for damages, now
due or hereafter to become due, with respect to any Lease, any indemnification against, or reimbursement for, sums paid and costs and
expenses incurred by Mortgagor under any Lease or otherwise, and any award in the event of the bankruptcy of any tenant under or guarantor
of a Lease (collectively, the “Rents”), (5) all materials, supplies, equipment, apparatus and other items
of personal property now owned or hereafter acquired by Mortgagor and now or hereafter attached to, installed in or used in connection
with any of the Improvements or the Land, and water, gas, electrical, telephone, storm and sanitary sewer facilities and all other utilities
now owned or hereafter acquired by Mortgagor, whether or not situated in easements (the “Fixtures”), (6) all
goods, accounts, general intangibles, instruments, documents, chattel paper and all other personal property of any kind or character,
including such items of personal property as defined in the UCC (defined below), now owned or hereafter acquired by Mortgagor and now
or hereafter affixed to, placed upon, used in connection with, arising from or otherwise related to the Land (collectively, the “Personalty”),
(7) all rights, privileges, tenements, hereditaments, rights-of-way, easements, appendages and appurtenances appertaining to the
foregoing now owned or hereafter acquired, (8) any and all cash proceeds and noncash proceeds including all (i) proceeds of
the conversion, voluntary or in-voluntary, of any of the Property or any portion thereof into cash or liquidated claims, (ii) proceeds
of any insurance, indemnity, warranty, guaranty or claim payable to Mortgagee or to Mortgagor from time to time with respect to any of
the Property, (iii) payments (in any form whatsoever) made or due and payable to Mortgagor from time to time in connection with
any requisition, confiscation, condemnation, seizure or forfeiture of all or any portion of the Property by any governmental authority
(or any person acting on behalf of a governmental authority) and (iv) other amounts from time to time paid or payable under or in
connection with any of the Property including, without limitation, refunds of real estate taxes and assessments, including interest thereon
(collectively, the “Proceeds”) and (9) any and all right, title and interest of Mortgagor in and to any
and all drawings, plans, specifications, file materials, operating and maintenance records, catalogues, tenant lists, correspondence,
advertising materials, operating manuals, warranties, guarantees, studies and data relating specifically to the Mortgaged Property or
the construction of any alteration relating to the Property the maintenance of any Property Agreement (the “Records”).
As used in this Security Instrument, the term “Property” shall mean all or, where the context permits or requires,
any portion of the above or any interest therein.
(d) “Obligations”:
Means the “Notes Obligations” as defined in the Indenture, Mortgagor’s obligations for the payment of the Indebtedness
and the performance of the Other Obligations (defined herein).
(e) “Other
Obligations”: Means all of the agreements, covenants, conditions, warranties, representations and other obligations of
Mortgagor hereunder and under the other Note Documents.
(f) “UCC”:
Means the Uniform Commercial Code of the State of [●].
Article II
GRANT
Section 2.1 Grant
of Security Title. Mortgagor hereby GRANTS, BARGAINS, SELLS, ASSIGNS, TRANSFERS AND CONVEYS
to Mortgagee and its successors and assigns, with power of sale, for the use, benefit and behoof of Mortgagee and its successors and
assigns, the Property, and hereby grants to Mortgagee for its benefit and the benefit of the Holders of the Notes a security interest
in and security title to all of the Property; TO HAVE AND TO HOLD the Property unto Mortgagee and its successors and assigns in fee simple
forever, for the purpose of securing the due and punctual payment and performance in full of the Indebtedness.
Article III
WARRANTIES, REPRESENTATIONS AND COVENANTS
Section 3.1 Warranties,
Representations and Covenants. Mortgagor warrants, represents and covenants to Mortgagee
as follows:
(a) Title
to Property. Mortgagor owns the Property free and clear of any liens, claims or interests, except the Permitted Liens, and this Security
Instrument. This Security Instrument creates a valid, enforceable first priority security interest in and security title to the Property
(b) Status.
Mortgagor shall preserve and protect the first priority lien and security interest status of this Security Instrument and the other Note
Documents. If any lien or security interest (other than the Permitted Liens or this Security Instrument) is asserted against the Property,
Mortgagor shall promptly, and at its expense, subject to its rights to contest the same in accordance with the Indenture and/or the other
Note Documents, (a) give Mortgagee a reasonably detailed written notice of such lien or security interest (including origin, amount
and other terms), and (b) pay the underlying claim in full or take such other action so as to cause it to be released.
(c) Payment
and Performance. Mortgagor shall pay or cause the Indebtedness to be paid when due under the Note Documents and shall perform or
cause to be performed the Obligations in full when they are required to be performed.
(d) Other
Covenants. All of the covenants of Mortgagor in the Indenture are incorporated herein by this reference.
Section 3.2 Condemnation
Awards. Mortgagor
authorizes Mortgagee to collect and receive all amounts described in clause (iii) of the definition of Proceeds and to give
proper receipts and acquittances therefor, subject to and in accordance with the terms of the Indenture.
Article IV
DEFAULT; POWER OF SALE
Section 4.1 Remedies.
Upon the occurrence and during the continuance of any Event of Default (as defined in the Indenture), Mortgagee may, at Mortgagee’s
election, exercise any or all of the following rights, remedies and recourses:
(a) Entry
on Property. Enter the Property and take exclusive possession thereof and of all books, records and accounts relating thereto or
located thereon. If Mortgagor remains in possession of the Property after an Event of Default and without Mortgagee’s prior written
consent, Mortgagee may invoke any legal remedies to dispossess Mortgagor.
(b) Operation
of Property. Hold, lease, develop, manage, operate or otherwise use the Property upon such terms and conditions as Mortgagee may
deem reasonable under the circumstances (making such repairs, alterations, additions and improvements and taking other actions, from
time to time, as Mortgagee deems necessary or desirable), and apply all Rents and other amounts collected by Mortgagee in connection
therewith in accordance with the provisions of Section 4.7 hereof.
(c) Power
of Sale. Exercise the power of sale herein granted in compliance with applicable law.
(d) Receiver.
Make application to a court of competent jurisdiction for, and obtain from such court as a matter of strict right and without notice
to Mortgagor or regard to the adequacy of the Property as security for the payment and performance of the Indebtedness, the appointment
of a receiver of the Property, and Mortgagor irrevocably consents to such appointment. Any such receiver shall have all the usual powers
and duties of receivers in similar cases, including the full power to rent, maintain and otherwise operate the Property upon such terms
as may be approved by the court, and shall apply such Rents in accordance with the provisions of Section 4.7 hereof.
(e) Foreclosure.
Institute proceedings for the complete foreclosure of this Security Instrument under any applicable provision of law, in which case the
Property or any interest therein may be sold for cash or upon credit in one or more parcels or in several interests or portions and in
any order or manner as Mortgagee shall elect in its sole and absolute discretion, Mortgagee being hereby expressly granted the power
to foreclose this Security Instrument and sell the Property at public auction and convey the same to the purchaser.
(f) Other.
Exercise all other rights, remedies and recourses granted under the Note Documents or otherwise available at law or in equity.
Section 4.2 Separate
Sales. The Property may be sold in one or more parcels and in such manner and order as Mortgagee
in its sole discretion may elect; the right of sale arising out of any Event of Default shall not be exhausted by any one or more sales.
Section 4.3 Remedies
Cumulative, Concurrent and Nonexclusive. Mortgagee shall have all rights, remedies and recourses
granted in the Note Documents and available at law or equity (including the UCC), which rights (a) shall be cumulative and concurrent,
(b) may be pursued separately, successively or concurrently against Mortgagor or others obligated under the Note Documents, or against
the Property, or against any one or more of them, at the sole discretion of Mortgagee, (c) may be exercised as often as occasion
therefor shall arise, and the exercise or failure to exercise any of them shall not be construed as a waiver or release thereof or of
any other right, remedy or recourse, and (d) are intended to be, and shall be, nonexclusive. No action by Mortgagee in the enforcement
of any rights, remedies or recourses under the Note Documents or otherwise at law or equity shall be deemed to cure any Event of Default.
Section 4.4 Release
of and Resort to Collateral. Mortgagee may release, regardless of consideration and without
the necessity for any notice to or consent by the holder of any subordinate lien on the Property, any part of the Property without, as
to the remainder, in any way impairing, affecting, subordinating or releasing the lien or security interest created in or evidenced by
the Note Documents or their status as a first priority lien and security interest in and to the Property. For payment of the Indebtedness,
Mortgagee may resort to any other security therefor granted by Mortgagor, Issuer or any Subsidiary Guarantor in such order and manner
as Mortgagee may elect.
Section 4.5 Waiver
of Redemption, Notice and Marshaling of Assets. To the fullest extent permitted by law,
Mortgagor hereby irrevocably and unconditionally waives and releases (a) all benefit that might accrue to Mortgagor by virtue of
any present or future statute of limitations or law or judicial decision exempting the Property from attachment, levy or sale on execution
or providing for any stay of execution, exemption from civil process, redemption or extension of time for payment, (b) all notices
of any Event of Default or of Mortgagee’s election to exercise or the actual exercise of any right, remedy or recourse provided
for under the Note Documents, and (c) any right to a marshaling of assets or a sale in inverse order of alienation.
Section 4.6 Discontinuance
of Proceeding. If Mortgagee shall have proceeded to invoke any right, remedy or recourse
permitted under the Note Documents and shall thereafter elect to discontinue or abandon it for any reason, Mortgagee shall have the unqualified
right to do so and, in such an event, Mortgagor and Mortgagee shall be restored to their former positions with respect to the Indebtedness,
the Obligations, the Note Documents, the Property and otherwise as if such right, remedy or recourse had never been invoked, and the
rights, remedies, recourses and powers of Mortgagee shall continue as if such right, remedy or recourse had never been invoked, but no
such discontinuance or abandonment shall waive any Event of Default which may then exist or the right of Mortgagee thereafter to exercise
any right, remedy or recourse under the Note Documents for such Event of Default.
Section 4.7 Application
of Proceeds. Trustee or Mortgagee may only apply money they collect hereunder pursuant to
Article V of the Indenture, in accordance with Section 5.06 of the Indenture.
Section 4.8 Occupancy
after Sale. Any sale of the Property or any part thereof in accordance with Section 4.1(c) hereof
will divest all right, title and interest of Mortgagor in and to the property sold. Subject to applicable law, any purchaser at such
sale will receive immediate possession of the property purchased. If Mortgagor retains possession of such property or any part thereof
subsequent to such sale, Mortgagor will be considered a tenant at sufferance of the purchaser, and will, if Mortgagor remains in possession
after demand to remove, be subject to eviction and removal, forcible or otherwise, with or without process of law.
Section 4.9 Additional
Advances and Disbursements; Costs of Enforcement.
(a) All
sums advanced and reasonable expenses incurred at any time by Mortgagee under and in accordance with this Security Instrument shall bear
interest from the date that such sum is advanced or expense incurred, to and including the date of reimbursement, computed at the rate
specified in the Indenture, and all such sums, together with interest thereon, shall be secured by this Security Instrument.
(b) Mortgagor
shall pay all reasonable expenses (including reasonable attorneys’ fees and expenses) of or incidental to the perfection and enforcement
of this Security Instrument and the other Note Documents, or the enforcement, compromise or settlement of the Indebtedness or the Obligations
or any claim under this Security Instrument and the other Note Documents, and for the curing thereof, or for defending or asserting the
rights and claims of Mortgagee in respect thereof, by litigation or otherwise, in accordance with the terms of the Indenture.
Section 4.10 No
Mortgagee in Possession. Neither the enforcement of any of the remedies under this Article IV,
the assignment of the Rents and Leases under Article V, the security interests under Article VI, nor any other
remedies afforded to Mortgagee under the Note Documents, at law or in equity, shall cause Mortgagee to be deemed or construed to be a
mortgagee in possession of the Property, to obligate Mortgagee to lease the Property or attempt to do so, or to take any action, incur
any expense, or perform or discharge any obligation, duty or liability whatsoever under any of the Leases or otherwise.
Article V
ASSIGNMENT OF LEASES AND RENTS
Section 5.1 Assignment.
As additional security for the payment and performance in full of the Indebtedness , Mortgagor hereby absolutely and unconditionally
assigns, sells, transfers and conveys to Mortgagee, all of its right, title and interest in and to all Leases, whether now existing or
hereafter entered into, and all of its right, title and interest in and to all Rents. This assignment is an absolute assignment and not
an assignment for additional security only. Mortgagor shall have and is hereby given a revocable license from Mortgagee to exercise all
rights extended to the landlord under the Leases, including the right to receive and collect all Rents and to hold the Rents in trust
for use in the payment and performance of the Indebtedness and to otherwise use the same. The foregoing license is granted subject to
the conditional limitation that no Event of Default shall have occurred and be continuing. Upon the occurrence and during the continuance
of an Event of Default, whether or not legal proceedings have commenced, and without regard to waste, adequacy of security for the Indebtedness
or solvency of Mortgagor, the license herein granted shall automatically expire and terminate without notice by Mortgagee (any such notice
being hereby expressly waived by Mortgagor) for so long as such Event of Default shall continue.
Section 5.2 Perfection
upon Recordation. Mortgagor acknowledges that Mortgagor has taken all reasonable actions
necessary to provide, and that upon recordation of this Security Instrument Mortgagee shall have, to the extent permitted under applicable
law, a valid and fully perfected, first priority, present assignment of the Rents arising out of the Leases and all security for such
Leases. Mortgagor acknowledges and agrees that upon recordation of this Security Instrument Mortgagee’s interest in the Rents shall
be deemed to be fully perfected, “choate” and enforced as to Mortgagor and all third parties, including, without limitation,
any subsequently appointed trustee in any case under Title 11 of the United States Code (the “Bankruptcy Code”),
without the necessity of commencing a foreclosure action with respect to this Security Instrument, making formal demand for the Rents,
obtaining the appointment of a receiver or taking any other affirmative action.
Section 5.3 Bankruptcy
Provisions. Without limitation of the absolute nature of the assignment of the Rents hereunder,
Mortgagor and Mortgagee agree that (a) this Security Instrument shall constitute a “security agreement” for purposes
of Section 552(b) of the Bankruptcy Code, (b) the security interest created by this Security Instrument extends to property
of Mortgagor acquired before the commencement of a case in bankruptcy and to all amounts paid as Rents and (c) such security interest
shall extend to all Rents acquired by the estate after the commencement of any case in bankruptcy.
Section 5.4 No
Merger of Estates. So long as part of the Indebtedness secured hereby remain unpaid and
undischarged, the fee and leasehold estates to the Property shall not merge, but shall remain separate and distinct, notwithstanding
the union of such estates either in Mortgagor, Mortgagee, any tenant or any third party by purchase or otherwise.
Article VI
SECURITY AGREEMENT
Section 6.1 Security
Interest. This Security Instrument constitutes a “security agreement” on personal
property within the meaning of the UCC and other applicable law and with respect to the Leases, Rents, Fixtures, Personalty, Proceeds
and Records. To this end, Mortgagor grants to Mortgagee a first priority security interest in and to all of Trustor’s right, title
and interest in and to the Leases, Rents, Fixtures, Personalty, Proceeds and all other Property which is personal property to secure
the payment and performance of the Indebtedness, and Mortgagor agrees that, upon the occurrence and during the continuance of an Event
of Default, Mortgagee shall have all the rights and remedies of a secured party under the UCC with respect to such property. Any notice
of sale, disposition or other intended action by Mortgagee with respect to the Leases, Rents, Fixtures, Personalty, Proceeds and Records
sent to Mortgagor at least ten (10) Business Days prior to any action under the UCC shall constitute reasonable notice to Mortgagor.
Section 6.2 Financing
Statements. Mortgagor shall deliver to Mortgagee such financing statements and such further
assurances as Mortgagor may, from time to time, reasonably consider necessary to create, perfect and preserve Mortgagee’s security
interest hereunder and Mortgagor may cause such statements and assurances to be recorded and filed, at such times and places as may be
required or permitted by law to so create, perfect and preserve such security interest.
Section 6.3 Fixture
Filing. This Security Instrument shall also constitute a “fixture filing” for
the purposes of the UCC against all of the Property which is or is to become fixtures, and the following information is applicable for
the purpose of such fixture filing, to wit:
Name and Address of the debtor:
Mortgagor having the address described in the Preamble hereof.
Mortgagor is a [●] organized under the laws of the
State of [●] whose Organization Number is [●], and whose Taxpayer Identification Number is [●]. |
Name and Address of the secured party:
Mortgagee having the address described in the Preamble hereof,
from which address information concerning the security interest may be obtained. |
This Financing Statement covers the following types or items
of property:
The Property described and defined in Section 1.1(c).
This instrument covers goods or items of personal property which
are or are to become fixtures upon the Property.
Mortgagor is the record owner of the Land described on Exhibit A
attached hereto.
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In addition, Mortgagor authorizes (but does not
obligate) Mortgagee to file appropriate financing and continuation statements under the UCC in effect in the jurisdiction in which the
Property is located as may be required by law in order to establish, preserve and protect the liens and security interests intended to
be granted to Mortgagee pursuant to this Security Instrument in the Property.
Article VII
MISCELLANEOUS
Section 7.1 Notices.
Any notice required or permitted to be given under this Security Instrument shall be given in accordance with Section 1.16 of the
Indenture.
Section 7.2 Change
in Tax Law. Upon the enactment of or change in (including, without limitation, a change
in interpretation of) any applicable law (i) deducting or allowing Mortgagor to deduct from the value of the Property for the purpose
of taxation any lien or security interest thereon or (ii) subjecting Mortgagee or any of the Holders of the Notes to any tax or
changing the basis of taxation of mortgages, deeds to secure debt, deeds of trust, or other liens or debts secured thereby, or the manner
of collection of such taxes, in each such case, so as to affect this Security Instrument, the Indebtedness or Mortgagee and the result
is to increase the taxes imposed upon or the cost to Mortgagee of maintaining the Indebtedness, or to reduce the amount of any payments
receivable hereunder, then, and in any such event, Mortgagor shall, on demand, pay to Mortgagee additional amounts to compensate for
such increased costs or reduced amounts, provided that if any such payment or reimbursement shall be unlawful, or taxable to Mortgagee,
or would constitute usury or render the Indebtedness wholly or partially usurious under applicable law, then Mortgagee may, at its option,
declare the Indebtedness immediately due and payable or require Mortgagor to pay or reimburse Mortgagee for payment of the lawful and
non-usurious portion thereof.
Section 7.3 Deed
and/or Intangibles Tax. Mortgagor shall (i) pay when due any tax imposed upon it or
upon Mortgagee or any of the Holders of the Notes pursuant to the tax law of the state in which the Property is located in connection
with and on account of the execution, delivery and recordation of this Security Instrument, and (ii) prepare, execute and file any
form required to be prepared, executed and filed in connection therewith.
Section 7.4 Attorney-in-Fact.
Mortgagor hereby irrevocably appoints Mortgagee and its successors and assigns, as its attorney-in-fact with full power of substitution,
which agency is coupled with an interest, (a) to execute and/or record any notices of completion, cessation of labor or any other
notices that Mortgagee deems appropriate to protect Mortgagee’s interest, if Mortgagor shall fail to do so within thirty (30) days
after written request by Mortgagee, (b) upon the issuance of a deed pursuant to the foreclosure of this Security Instrument or the
delivery of a deed in lieu of foreclosure, to execute all instruments of assignment, conveyance or further assurance with respect to
the Property, Leases, Rents, Fixtures, Personalty, Proceeds and Records in favor of the grantee of any such deed and as may be necessary
or desirable for such purpose, and (c) to prepare, execute and file or record financing statements, continuation statements, applications
for registration and like papers necessary to create, perfect or preserve Mortgagee’s security interests and rights in or to any
of the Property, if Mortgagor shall fail to do so within ten (10) days after written request by Mortgagee; provided, however:
(1) Mortgagee shall under no circumstances be obligated to perform any obligation of Mortgagor; (2) any sums advanced by Mortgagee
in such performance shall be added to and included in the Indebtedness and shall bear interest at the rate or rates at which interest
is then computed on the Indebtedness; (3) Mortgagee as such attorney-in-fact shall only be accountable for such funds as are actually
received by Mortgagee; and (4) Mortgagee shall not be liable to Mortgagor or any other person or entity for any failure to take
any action which it is empowered to take under this Section 7.4.
Section 7.5 Successors
and Assigns. This Security Instrument shall be binding upon and inure to the benefit of
Mortgagee and Mortgagor and their respective successors and assigns. In the event of an assignment of all or any of the Obligations,
the rights hereunder, to the extent applicable to the indebtedness so assigned, may be transferred with such indebtedness.
Section 7.6 No
Waiver. Any failure by Mortgagee to insist upon strict performance of any of the terms,
provisions or conditions of the Note Documents shall not be deemed to be a waiver of same, and Mortgagee (as so required by applicable
law) shall have the right at any time to insist upon strict performance of all of such terms, provisions and conditions.
Section 7.7 Indenture.
Except with respect to Section 7.9, if any conflict or inconsistency exists between this Security Instrument and the Indenture,
the Indenture shall govern. With respect to the applicable law, Section 7.9 of this Security Instrument will govern, notwithstanding
any inconsistent provisions of the Indenture.
Section 7.8 Release.
Upon payment in full of the Indebtedness or upon a sale of the Property in accordance with the provisions of the Indenture, Mortgagee
(as so required by applicable law), at Mortgagor’s expense, shall release the liens and security interests created by this Security
Instrument.
Section 7.9 Applicable
Law. The provisions of this Security Instrument regarding the creation, perfection and enforcement
of the liens and security interests herein granted shall be governed by and construed under the laws of the state in which the Property
is located. All other provisions of this Security Instrument shall be governed by the laws of the State of New York (including, without
limitation, Section 5-1401 of the General Obligations Law of the State of New York), without regard to conflicts of laws principles.
Section 7.10 Headings.
The Article, Section and Subsection titles hereof are inserted for convenience of reference only and shall in no way alter, modify
or define, or be used in construing, the text of such Articles, Sections or Subsections.
Section 7.11 Entire
Agreement. This Security Instrument and the other Note Documents constitute the entire agreement
and understanding between Mortgagee and Mortgagor relating to the subject matter hereof and supersede all prior agreements and understandings
between such parties relating to the subject matter hereof. Accordingly, none of the Note Documents may be contradicted by evidence of
prior, contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties related
to the subject matter hereof. No amendment, modification, supplement, termination or waiver of or to any provision hereof, nor consent
to any departure by Mortgagor therefrom, shall be effective unless in writing and signed by Mortgagee.
Section 7.12 Reduction
of Secured Amount. In the event that the amount secured by this Security Instrument is less
than the aggregate Indebtedness evidenced by the Indenture, then the amount secured shall be reduced only by the last and final sums
that Mortgagor or Issuer or any Guarantor repays with respect to the Indebtedness and shall not be reduced by any intervening repayments
of the Indebtedness. So long as the balance of the Indebtedness exceeds the amount secured, any payments of the Indebtedness shall not
be deemed to be applied against, or to reduce, the portion of the Indebtedness secured by this Security Instrument. Such payments shall
instead be deemed to reduce only such portions of the Indebtedness as are secured by other collateral located outside of the state in
which the Property is located or as are unsecured.
Section 7.13 Collateral
Agent. Mortgagee shall be entitled to all of the protections, immunities, rights and indemnities
provided to it in the Indenture, all of which are hereby incorporated herein by reference, mutatis mutandis.
Section 7.14 Further
Acts. Mortgagor shall, at the reasonable cost and expense of Mortgagor, do, execute, acknowledge
and deliver all and every such further acts, deeds, conveyances, mortgages, assignments, notices of assignment, transfers, financing
statements, continuation statements, instruments and assurances as Mortgagee shall from time to time reasonably request, which may be
necessary in the reasonable judgment of Mortgagee from time to time to assure, perfect, convey, assign, mortgage, transfer and confirm
unto Mortgagee, the property and rights hereby conveyed or assigned or which Mortgagor may be or may hereafter become bound to convey
or assign to Mortgagee or for carrying out the intention or facilitating the performance of the terms hereof or the filing, registering
or recording hereof. Mortgagor shall pay or cause to be paid all taxes and fees incident to such filing, registration and recording,
and all expenses incident to the preparation, execution and acknowledgment thereof, and of any instrument of further assurance, and all
Federal or state stamp taxes or other taxes, duties and charges arising out of or in connection with the execution and delivery of such
instruments. In the event Mortgagee advances any sums to pay the amounts set forth in the preceding sentence, such advances shall be
secured by this Mortgage.
Section 7.15 WAIVER
OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS MORTGAGE (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
MORTGAGE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.15.
Article VIII
[STATE-SPECIFIC PROVISIONS]34
| · | CONNECTICUT STATE
SPECIFIC PROVISIONS5 |
| · | FLORIDA STATE SPECIFIC
PROVISIONS |
Section 8.1 State
Specific Provisions. In the event of any inconsistencies between this Article VIII
and any of the other terms and provisions of this Security Instrument, the terms and provisions of this Article VIII
shall control and be binding
Section 8.2 Lien.
The words “lien of this Security Instrument”, “lien hereof” or words of similar import shall mean the lien, security
title and security interest granted in this Security Instrument.
Section 8.3 Collateral
Agent’s Attorneys’ Fees. Whenever the provisions of this Security Instrument
or any other Not Document provide for Mortgagor to pay Collateral Agent’s attorneys’ fees and expenses, such obligation shall
be construed to mean the fees and expenses of Collateral Agent’s outside counsel actually incurred by Collateral Agent at standard
hourly rates.
Section 8.4 Multiple
Mortgages. Collateral Agent hereby acknowledges that this Security Instrument is being executed
concurrently with other deeds to secure debt, mortgages and deeds of trust which also secure the Obligations by encumbering separate
real property located both within the State of Florida and outside the State of Florida. Mortgagor hereby agrees that this Security Instrument
and the other instruments (collectively, the “Instruments”) may be foreclosed in any order and that to the
extent permitted by applicable law, Collateral Agent shall be under no obligation to confirm any sale under any one of the Instruments
before proceeding with foreclosure or the exercise of other remedies under any other Instruments.
| · | HAWAII STATE
SPECIFIC PROVISIONS6 |
| · | ILLINOIS STATE
SPECIFIC PROVISIONS |
Section 8.1 State
Specific Provisions. In the event of any inconsistencies between the terms and conditions
of this Article VIII and the terms and conditions of this Security Instrument, the terms and conditions of this Article VIII
shall control.
Section 8.2 Illinois
Collateral Protection Act Requirements. Pursuant to the terms of the Collateral Protection
Act, 815 ILCS 180/1 et seq., Mortgagor is hereby notified that unless Mortgagor provides Mortgagee with evidence of the insurance coverage
required by this Security Instrument, Mortgagee may purchase insurance at Mortgagor's expense to protect Mortgagee’s interests
in the Property, which insurance may, but need not, protect the interests of Mortgagor. The coverage purchased by Mortgagee may not pay
any claim made by Mortgagor or any claim made against Mortgagor in connection with the Property. Mortgagor may later cancel any insurance
purchased by Mortgagee, but only after providing Mortgagee with evidence that Mortgagor has obtained the insurance as required hereunder.
If Mortgagee purchases insurance for the Property, Mortgagor will be responsible for the costs of such insurance, including interest
and any other charges imposed in connection with the placement of the insurance, until the effective date of the cancellation or expiration
of the insurance. The costs of the insurance may be added to the Obligations secured hereby. The costs of such insurance may be greater
than the cost of insurance Mortgagor may be able to obtain for itself.
3 NTD: Title to confirm whether these state specific provisions
are applicable.
4 NTD: Any defined terms used in each state specific provision
below be incorporated into the final version of the applicable mortgage.
5 Note to Title: Please provide applicable state specific
provisions or precedent.
6 Note to Title: Please provide applicable state specific
provisions or precedent.
Section 8.3 Protective
Advances. It is the intention of Mortgagor and Mortgagee that the enforcement of the terms
and provisions of this Security Instrument shall be accomplished in accordance with the Illinois Mortgage Foreclosure Law (the “Act”),
735 ILCS 5/15-1 101 et seq., and with respect to such Act, Mortgagor agrees and covenants that:
(a) Mortgagee
shall have the benefit of all of the provisions of the Act, including all amendments thereto which may become effective from time to
time after the date hereof. In the event any provision of the Act which is specifically referred to herein may be repealed, to the maximum
extent permitted by law, Mortgagee shall have the benefit of such provision as most recently existing prior to such repeal, as though
the same were incorporated herein by express reference. If any provision in this Security Instrument shall be inconsistent with any provision
of the Act, provisions of the Act shall take precedence over the provisions of this Security Instrument but shall not invalidate or render
unenforceable any other provision of this Security Instrument that can be construed in a manner consistent with the Act. If any provision
of this Security Instrument shall grant to Mortgagee (including Mortgagee acting as a Mortgagee-in-possession) or a receiver, any powers,
rights or remedies prior to or upon the occurrence and during the continuance of a Default, which are more limited than the powers, rights
or remedies that would otherwise be vested in Mortgagee or in such receiver under the Act in the absence of said provision, Mortgagee
and such receiver shall be vested with the powers, rights and remedies granted in the Act to the full extent permitted by law. Without
limiting the generality of the foregoing, all expenses incurred by Mortgagee, whether incurred before or after any decree or judgment
of foreclosure, and whether or not enumerated in this Security Instrument, shall be added to the Obligations and shall have the benefit
of all applicable provisions of the Act.
(b) Wherever
provision is made in this Security Instrument for insurance policies to bear Mortgagee clauses or other loss payable clauses or endorsements
in favor of Mortgagee, or to confer authority upon to settle or participate in the settlement of losses under policies of insurance or
to hold and disburse or otherwise control the use of insurance proceeds, from and after the entry of judgment of foreclosure, all such
rights and powers of Mortgagee shall continue in Mortgagee as judgment creditor or Mortgagee until confirmation of sale.
(c) All
advances, disbursements and expenditures made or incurred by Mortgagee before and during a foreclosure, and before and after judgment
of foreclosure, and at any time prior to sale, and, where applicable, after sale, and during the pendency of any related proceedings,
for the following purposes, in addition to those otherwise authorized by this Security Instrument, or the Note Document or by the Act
(collectively “Protective Advances”), shall have the benefit of all applicable provisions of the Act, including
those provisions of the Act herein below referred to:
(i) all
advances by Mortgagee in accordance with the terms of the Security Instrument or the Note Document to: (i) preserve, maintain, repair,
restore or rebuild the improvements upon the Property; (ii) preserve the lien of the Security Instrument or the priority thereof;
or (iii) enforce the Security Instrument, as referred to in Subsection (b)(5) of Section 15-1302 of the Act;
(ii) payments
by Mortgagee of (i) principal, interest or other obligations in accordance with the terms of any senior mortgage or other prior
lien or encumbrance; (ii) real estate taxes and assessments, general and special and all other taxes and assessments of any kind
or nature whatsoever which are assessed or imposed upon the Property or any part thereof; (iii) other obligations authorized by
the Security Instrument; or (iv) with court approval, any other amounts in connection with other liens, encumbrances or interests
reasonably necessary to preserve the status of title, as referred to in Section 15-1505 of the Act;
(iii) advances
by Mortgagee in settlement or compromise of any claims asserted by claimants under senior mortgages or any other prior liens;
(iv) attorneys'
fees and other costs incurred: (A) in connection with the foreclosure of the Security Instrument as referred to in Sections 15-
1504(d)(2) and 15-1510 of the Act; (B) in connection with any action, suit or proceeding brought by or against Mortgagee for
the enforcement of the Security Instrument or arising from the interest of Mortgagee hereunder; or (C) in preparation for or in
connection with the commencement, prosecution or defense of any other action related to the Security Instrument or the Property;
(v) Mortgagee's
fees and costs, including attorneys' fees, arising between the entry of judgment of foreclosure and the confirmation hearing as referred
to in Section 15-1508(b)(l) of the Act;
(vi) expenses
deductible from proceeds of sale as referred to in Section 15- 1512(a) and (b) of the Act; and
(vii) expenses
incurred and expenditures made by Mortgagee for any one or more of the following: (A) if the Property or any portion thereof constitutes
one or more units under a condominium declaration, assessments imposed upon the unit owner thereof; (B) if Mortgagor's interest
in the Property is a leasehold estate under a lease or sublease, rentals or other payments required to be made by the lessee under the
terms of the lease or sublease; (C) premiums for casualty and liability insurance paid by Mortgagee whether or not Mortgagee or
a receiver is in possession, if reasonably required, in reasonable amounts, and all renewals thereof, without regard to the limitation
to maintaining of existing insurance in effect at the time any receiver or Mortgagee takes possession of the Property imposed by Section 15-1704(c)(1) of
the Act; (D) repair or restoration of damage or destruction in excess of available insurance proceeds or condemnation awards; (E) payments
deemed by Mortgagee to be required for the benefit of the Property or required to be made by the owner of the Property under any grant
or declaration of easement, easement agreement, agreement with any adjoining land owners or instruments creating covenants or restrictions
for the benefit of or affecting the Property; (F) shared or common expense assessments payable to any association or corporation
in which the owner of the Property is a member in any way affecting the Property; (G) if the loan secured hereby is a construction
loan, costs incurred by Mortgagee for demolition, preparation for and completion of construction, as may be authorized by the applicable
commitment, loan agreement or other agreement; (H) payments required to be paid by Mortgagor or Mortgagee pursuant to any lease
or other agreement for occupancy of the Property and (I) if the Security Instrument is insured, payment of FHA or private mortgage
insurance required to keep such insurance in force.
(d) This
Security Instrument shall be a lien for all Protective Advances as to subsequent purchasers and judgment creditors from the time this
Security Instrument is recorded pursuant to Subsection (b)(5) of Section 15-1302 of the Act. All Protective Advances shall,
except to the extent, if any, that any of the same is clearly contrary to or inconsistent with the provisions of the Act, apply to and
be included in:
(i) any
determination of the amount of indebtedness secured by this Security Instrument at any time;
(ii) the
indebtedness found due and owing to Mortgagee in the judgment of foreclosure and any subsequent supplemental judgments, orders, adjudications
or findings by the court of any additional indebtedness becoming due after such entry of judgment, it being agreed that in any foreclosure
judgment, the court may reserve jurisdiction for such purpose;
(iii) if
right of redemption has not been waived by this Security Instrument, computation of amounts required to redeem, pursuant to Sections
15- 1603(d)(2) and 1603(e) of the Act;
(iv) determination
of amounts deductible from sale proceeds pursuant to Section 15-1512 of the Act;
(v) application
of income in the hands of any receiver or Mortgagee in possession; and
(vi) computation
of any deficiency judgment pursuant to Sections 15- 1508(b)(2), 15-1508(e) and 15-1511 of the Act.
(e) In
addition to any provision of this Security Instrument authorizing Mortgagee to take or be placed in possession of the Property, or for
the appointment of a receiver, Mortgagee shall have the right, in accordance with Sections 15-1701 and 15-1702 of the Act, to be placed
in the possession of the Property or at its request to have a receiver appointed, and such receiver, or Mortgagee, if and when placed
in possession, shall have, in addition to any other powers provided in this Security Instrument, all rights, powers, immunities, and
duties and provisions for in Sections 15-1701 and 15-1703 of the Act.
(f) Mortgagor
acknowledges that the Property does not constitute agricultural real estate as defined in Section 15-1201 of the Act or residential
real estate as defined in Section 15-1219 of the Act.
(g) Mortgagor
hereby expressly waives any and all rights of reinstatement and redemption, if any, under any order or decree of foreclosure of this
Security Instrument, on its own behalf and on behalf of each and every person, it being the intent hereof that any and all such rights
of reinstatement and redemption of Mortgagor and of all other persons are and shall be deemed to be hereby waived to the full extent
permitted by the provisions of Section 15-1601 of the Act or other applicable law or replacement statutes
(h) Mortgagor
expressly agrees that for purposes of this Security Instrument and the other Note Documents: (i) this Security Instrument and the
other Note Documents shall be a “credit agreement” under the Illinois Credit Agreements Act, 815 ILCS 160/1, et seq. (the
“Credit Agreement Act”); (ii) the Credit Agreement Act applies to this transaction including, but not limited to, the
execution of this Security Instrument and the Notes; and (iii) any action on or in any way related to this Security Instrument and
each other Note Document shall be governed by the Credit Agreement Act. No modification, amendment or waiver of, or consent to any departure
by Mortgagor from, any provision of this Security Instrument will be effective unless made in a writing signed by Mortgagee, and then
such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on
Mortgagor will entitle Mortgagor to any other or further notice or demand in the same, similar or other circumstance.
Section 8.4 Secured
Interest. This Security Instrument is given to secure “future advances” as defined
and authorized under applicable Illinois statutes, including, without limitation, 205 ILCS 5/5d, 205 ILCS 105/l-6b, 815 ILCS 205/4.1,
735 ILCS 5/15-1207 and 735 ILCS 5/15-1302. Mortgagee is obligated under the terms of the Note Document to make advances upon the satisfaction
of certain conditions as provided therein, and Mortgagor acknowledges and intends that all such advances, including future advances whenever
hereafter made, shall be a lien from the time this Security Instrument is recorded, as provided in Section 15-1302(b)(1) of
the Act. Mortgagor covenants and agrees that this Security Instrument shall secure the payment of all loans and advances made pursuant
to the terms and provisions of the Note Document, whether such loans and advances are made as of the date hereof or at any time in the
future, and whether such future advances are obligatory or are to be made at the option of Mortgagee or otherwise (but not advances or
loans made more than 20 years after the date hereof), to the same extent as if such future advances were made on the date of the execution
of this Security Instrument and although there may be no advances made at the time of the execution of this Security Instrument and although
there may be no other indebtedness outstanding at the time any advance is made. The lien of this Security Instrument shall be valid as
to all Obligations, including future advances, from the time of its filing of record in the office of the recorder of deeds of the county
in which the Property is located. The total amount of the Obligations may increase or decrease from time to time, but the total unpaid
principal balance of the Obligations (including disbursements which Mortgagee may make under this Security Instrument or any other document
or instrument evidencing or securing the Obligations) at any time outstanding shall not exceed $800,000,000.00. This Security Instrument
shall be valid and shall have priority over all subsequent liens and encumbrances, including statutory liens except taxes and assessments
levied on the Property, to the extent of the maximum amount secured hereby.
Section 8.5 Interest
Payment. The Obligations of Mortgagor pursuant to the Notes, which obligations are secured
by this Security Instrument, include, among other things, the obligation to pay interest on the unpaid principal balance of the Note
described in the Note Document, which interest accrues from time to time at a variable rate of interest as provided in the Note Document
and the Notes.
Section 8.6 Use
of Proceeds. Mortgagor represents and warrants to Mortgagee that the proceeds of the Note
secured hereby shall be used solely for business purposes and in furtherance of the regular business affairs of Mortgagor, and the entire
principal obligation secured by this Security Instrument constitutes (i) a “business loan” as that term is defined in,
and for all purposes of, 815 ILCS 205/4(1)(c) and (ii) a “loan secured by a mortgage on real estate” within the
purview and operation of 815 ILCS 205/4(l)(l).
| · | INDIANA STATE
SPECIFIC PROVISIONS7 |
| · | KANSAS STATE
SPECIFIC PROVISIONS |
Section 8.1 No
Unwritten Credit Agreement. The following provisions are included in compliance with K.S.A.
Sections 16-117 and 16-118. THIS WRITTEN AGREEMENT, TOGETHER WITH THE OTHER LOAN DOCUMENTS WHICH ARE INCORPORATED HEREIN BY THIS REFERENCE,
CONSTITUTE THE FINAL EXPRESSION OF THE CREDIT AGREEMENT BETWEEN THE MORTGAGOR AND MORTGAGEE AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF ANY PRIOR OR CONTEMPORANEOUS ORAL AGREEMENT BETWEEN THE MORTGAGOR AND MORTGAGEE. THE FOLLOWING SPACE (WHICH MORTGAGOR AND MORTGAGEE
AGREE IS SUFFICIENT SPACE) IS PROVIDED FOR THE PLACEMENT FOR NONSTANDARD TERMS, IF ANY (IF THERE ARE NO NONSTANDARD TERMS TO BE
ADDED, STATE “NONE”): NONE. MORTGAGOR AND MORTGAGEE HEREBY AFFIRM THAT THERE IS NO UNWRITTEN ORAL CREDIT AGREEMENT BETWEEN
MORTGAGOR AND MORTGAGEE WITH RESPECT TO THE SUBJECT MATTER OF THIS WRITTEN AGREEMENT.
MORTGAGOR INITIALS (as to Section 8.1):
____
MORTGAGEE INITIALS (as to Section 8.1):
____
Section 8.2 Waiver
of Homestead, Redemption and Other Rights. Except to the extent contrary to applicable law,
Mortgagor hereby releases and waives the benefit of (i) all laws now existing or hereafter enacted that provide for appraisal before
sale of the items of the Property being sold, or that provide for the extension of the time for the enforcement of the collection of
the Obligations or that create or extend the period for redemption of any of the Property from any sale thereof to collect the Obligations,
and (ii) the homestead exemption laws of the State of Kansas. Without limiting the generality of the foregoing, Mortgagor wholly
waives all rights of redemption including without limitation the period of redemption provided under K.S.A. 60-2414 and any successor
statutes thereto and further agrees that if and when a sale is had under a decree of foreclosure against Mortgagor, the sheriff or other
officer making such sale, or such person's successor in office, is authorized to immediately execute a deed to the purchaser.
| · | MASSACHUSETTS
STATE SPECIFIC PROVISIONS |
7 Note to Title: Please provide applicable state specific
provisions or precedent.
Section 8.1 State
Specific Provisions. In the event of any inconsistencies between the terms and conditions
of this Section 8.1 and the terms and conditions of any other provisions of this Security Instrument, the terms and conditions
of this Section 8.1 shall control and be binding.
(a) Any
sale made hereunder pursuant to Mortgagee's exercise of the STATUTORY POWER OF SALE may be as an entirety or in such parcels, portions,
or units as Mortgagee may determine in its sole discretion. To the extent permitted by applicable law, any sale may be adjourned by announcement
at the time and place appointed for such sale without further notice except as may be required by law. A sale may cover not only the
Property but also the personal property and other interests which are a part of the Property and/or Collateral, or any part thereof,
as a unit and as a part of a single sale, or the sale may be of any part of the Property and/or Collateral separately from the remainder
of the Property and/or Collateral. Neither Mortgagor nor any other person or entity other than Mortgagee shall have the right to direct
the order or manner in which the Property and/or Collateral is foreclosed or otherwise sold. If the proceeds of any such sale of less
than the entirety of the Property shall be less than the aggregate of the Secured Obligations, then this Security Instrument and the
Lien hereof shall remain in full force and effect as to the unsold portion of the Property as though no sale had been made and the STATUTORY
POWER OF SALE hereunder shall also apply to any future sales. If, in the opinion of Mortgagee, any sale hereunder is not completed or
is defective in any manner, such sale shall not exhaust the STATUTORY POWER OF SALE hereunder and Mortgagee shall have the right to cause
a subsequent sale or sales to be made hereunder. Any person, including Mortgagee, may purchase at the sale.
(b) This
Security Instrument shall take effect as a sealed instrument pursuant to the laws of the Commonwealth of Massachusetts.
(c) Mortgagor
covenants, warrants and represents that all of the proceeds of the Loan secured hereby shall be used for business or commercial purposes,
none of the proceeds of the Loan secured hereby shall be used for personal, family or household purposes, and that no individual liable
for the Loan resides or intends to reside in any portion of the Property.
| · | MICHIGAN STATE
SPECIFIC PROVISIONS8 |
| · | MINNESOTA STATE
SPECIFIC PROVISIONS |
Section 8.1 Power
of Sale; Waiver of Hearing on Foreclosure. THIS SECURITY INSTRUMENT CONTAINS A POWER OF SALE AND UPON THE OCCURRENCE OF A DEFAULT
MAY BE FORECLOSED BY ADVERTISEMENT. MORTGAGOR HEREBY WAIVES ALL RIGHTS UNDER THE CONSTITUTION AND LAWS OF THE UNITED STATES AND
THE STATE OF MINNESOTA TO A HEARING PRIOR TO SALE IN CONNECTION WITH FORECLOSURE OF THIS SECURITY INSTRUMENT BY ADVERTISEMENT AND ALL
NOTICE REQUIREMENTS EXCEPT AS SET FORTH IN THE MINNESOTA STATUTE PROVIDING FOR FORECLOSURE BY ADVERTISEMENT.
8 Note to Title: Please provide applicable state specific
provisions or precedent.
Section 8.2 Waiver
of Homestead. Mortgagor hereby waives any and all homestead rights in the Property.
| · | NEW
YORK STATE SPECIFIC PROVISIONS |
Section 8.1 Sections
254 and 273 of the Real Property Law of the State Of New York. All covenants hereof shall
be construed as affording to Mortgagee rights additional to and not exclusive of the rights conferred under the provisions of Sections
254 and 273 of the Real Property Law of the State of New York, or any other applicable law.
Section 8.2 Improvement
by More Than Six (6) Dwelling Units. This Security Instrument does not cover real property
principally improved or to be improved by one or more structures containing in the aggregate not more than six (6) residential dwelling
units, each having their own separate cooking facilities.
Section 8.3 Section 291-F
of the Real Property Law of the State of New York. This Mortgage is intended to be, and
shall operate as, the agreement described in Section 291-f of the Real Property Law of the State of New York and shall be entitled
to the benefits afforded thereby. Mortgagor shall (unless such notice is contained in such tenant’s Lease) deliver notice of this
Mortgage in form and substance acceptable to Mortgagee, to all present and future holders of any interest in any Lease, by assignment
or otherwise, and shall take such other action as may now or hereafter be reasonably required to afford Mortgagee the full protections
and benefits of Section 291-f. Mortgagor shall request the recipient of any such notice to acknowledge the receipt thereof.
Section 8.4 Maximum
Amount Secured. Notwithstanding anything contained herein to the contrary, the maximum amount
of indebtedness secured by this Mortgage at execution or which under any contingency may become secured hereby at any time hereafter
is (i) the principal sum of $940,534,000 plus interest and late charges thereon (at such rates as provided for in the Notes or herein,
as applicable), plus (ii) amounts expended by Mortgagee to maintain the lien of this Mortgage or to protect the Property secured
by this Mortgage, including, without limitation, amounts in respect of insurance premiums, real estate taxes, litigation expenses to
prosecute or defend the rights, remedies and lien of this Mortgage or title to the Property secured hereby, and any costs, charges or
amounts to which Mortgagee becomes subrogated upon payment, whether under recognized principles of law or equity under express statutory
authority, together with interest on all the foregoing amounts at such rates as provided for in the Notes or herein, as applicable.
Section 8.5 Maximum
Trust Fund. Pursuant to Section 13 of the Lien Law of New York, Mortgagor shall receive
advances secured by this Mortgage and shall hold the right to receive such advances as a trust fund to be applied first for the purpose
of paying the cost of any improvement on the Property before using any part of the total of the same for any other purpose.
| · | OHIO STATE SPECIFIC
PROVISIONS |
Section 8.1 State-Specific
Provisions. In the event of any inconsistencies between this Section 8.1 and
any of the other terms and provisions of this Security Instrument, the terms and provisions of this Section 8.1 shall control
and be binding.
(a) For
all items of the property secured hereunder in which an interest arises under real estate law, this is an open-end mortgage that secures
payment of future advances. This Mortgage is an open-end mortgage under Section 5301.232 of the Ohio Revised Code and is intended
to secure all of the Obligations, including the unpaid balance of advances made by Mortgagee after this Security Instrument is delivered
to the [●] recorder for recording to the extent that the total unpaid loan advances exclusive of interest thereon, does
not exceed the maximum amount of [●] which may be outstanding from time to time. Mortgagor covenants not to issue a notice
pursuant to the Section 5301.232(c) of the Ohio Revised Code to Mortgagee until all Obligations have been satisfied in full
(b) Upon
the occurrence and during the continuance of an Event of Default, Mortgagee and Mortgagee shall have the right, but not the obligation,
to make protective advances with respect to the Property for the payment of taxes, assessments, insurance premiums, maintenance and all
other costs incurred for the protection of the Property as contemplated by Section 5301.233 of the Ohio 46 Revised Code, and such
protective advances, together with interest thereon at such rates as provided for in the Notes or herein, as applicable, of each such
advance, regardless of the time when such advance is made, until it is repaid in full, shall be secured by this Security Instrument to
the fullest extent and with the highest priority contemplated by said Section 5301.233.
(c) Mortgagee
shall be and hereby is authorized and empowered to do, as mortgagee, all things provided to be done in the mechanics' lien law of the
State of Ohio (including Section 1311.14 of the Ohio Revised Code), and all acts amendatory or supplementary thereto.
(d) With
respect to any agreement by Mortgagor in this Security Instrument or in any other Note Document to pay Mortgagee’s attorneys’
fees and disbursements incurred in connection with the Note, Mortgagor agrees that each Note Document is a “contract of indebtedness”
and that the attorneys' fees and disbursements referenced are those which are a reasonable amount, all as contemplated by Ohio Revised
Code Section 1319.02, as such Section may hereafter be amended. Mortgagor further agrees that the indebtedness incurred in
connection with the Note is not incurred for purposes that are primarily personal, family or household and confirms that the total amount
owed on the contract of indebtedness exceeds $100,000.
| · | PENNSYLVANIA
STATE SPECIFIC PROVISIONS9 |
| · | SOUTH CAROLINA
STATE SPECIFIC PROVISIONS10 |
| · | WISCONSIN STATE
SPECIFIC PROVISIONS11 |
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9 Note to Title: Please provide applicable state specific
provisions or precedent.
10 Note to Title: Please provide applicable state specific
provisions or precedent.
11 Note to Title: Please provide applicable state specific
provisions or precedent.
IN WITNESS WHEREOF, THIS SECURITY
INSTRUMENT has been EXECUTED AND DELIVERED by Mortgagor effective as of the date first above written, caused this instrument to be duly
by authority duly given.
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