Form 8-K DUPONT FABROS TECHNOLOGY For: Jun 04
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
June 4, 2015
Date of Report (Date of Earliest Event Reported)
DUPONT FABROS TECHNOLOGY, INC.
(Exact Name of Registrant as Specified in Its Charter)
| Maryland | 001-33748 | 20 – 8718331 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
1212 New York Avenue, N.W., Suite 900
Washington, D.C. 20005
(Address of Principal Executive Offices) (Zip Code)
(202) 728-0044
(Registrant’s Telephone Number, Including Area Code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule l4a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule l4d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule l3e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement
On June 4, 2015, DuPont Fabros Technology, L.P. (the “Operating Partnership”), the operating partnership of DuPont Fabros Technology, Inc. (the “Company”), the Company, and certain of the Operating Partnership’s subsidiaries entered into an Underwriting Agreement (the “Agreement”) with SunTrust Robinson Humphrey, Inc., as representative of the underwriters named therein (the “Underwriters”), relating to the issuance and sale of $250,000,000 aggregate principal amount of the Operating Partnership’s 5.625% senior notes due 2023 (the “Notes”) at a public offering price of 99.205% of their face value.
The Company estimates that the net proceeds from the Notes offering, after deducting underwriting discounts and commissions and estimated offering expenses payable by the Company, will be approximately $244.4 million. The Company intends to use all of the net proceeds from the Notes offering for the repayment of amounts outstanding under its unsecured credit facility and for general corporate purposes, including funding its development activities.
The Operating Partnership, the Company and the Subsidiary Guarantors (as defined below) made certain customary representations, warranties and covenants concerning the Operating Partnership, the Company, the Subsidiary Guarantors and the Registration Statement (as defined below) in the Agreement and also agreed to indemnify the Underwriters against certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Act”), or to contribute to payments the Underwriters may be required to make in respect of those liabilities.
The Notes were issued pursuant to an Indenture, dated as of June 9, 2015 (the “Base Indenture”), by and among the Operating Partnership and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture, dated as of June 9, 2015 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), by and among the Operating Partnership, the Company, the Subsidiary Guarantors and the Trustee.
The Notes have been registered under the Act, pursuant to a shelf registration statement of Form S-3 (File No. 333-204635) (the “Registration Statement”) previously filed by the Company, the Operating Partnership and the Subsidiary Guarantors with the Securities and Exchange Commission under the Act.
The following is a brief summary of the material terms and conditions of the Indenture:
Interest – The Notes will bear interest from June 9, 2015 at a rate of 5.625% per annum. The Operating Partnership will pay interest on the Notes semi-annually, in arrears, on December 15 and June 15 of each year, beginning December 15, 2015.
Maturity – The Notes will mature on June 15, 2023.
Guarantees – The Notes are unconditionally guaranteed, jointly and severally on a senior unsecured basis by the Company and certain of the Operating Partnership’s subsidiaries, including the subsidiaries that own the ACC2, ACC4, ACC5, ACC6, VA3, VA4, CH1, NJ1 and SC1 data centers, and the SC2 parcel of land (collectively, the “Subsidiary Guarantors”), but excluding the Operating Partnership’s subsidiaries that own the ACC3 and ACC7 data centers, the CH2 data center under development, the ACC8 parcel of land, the Operating Partnership’s taxable services subsidiary, DF Technical Services, LLC, and the Operating Partnership’s property management subsidiary, DF Property Management LLC.
Ranking – The Notes rank (i) equally in right of payment with all of the Operating Partnership’s existing and future unsecured indebtedness, (ii) senior in right of payment to all of the Operating Partnership’s existing and future subordinated indebtedness, (iii) effectively subordinate in right of payment to all of the Operating Partnership’s existing and future secured indebtedness (to the extent of the value of the collateral securing such indebtedness) and (iv) structurally subordinate, and effectively junior, to all liabilities of any subsidiaries of the Operating Partnership that do not guarantee the Notes. The guarantees of the Notes by the Company and the Subsidiary Guarantors rank (i) equally in right of payment with all of such guarantors’ existing and future senior unsecured indebtedness, (ii) senior in right of payment with all of such guarantors’ existing and future subordinated indebtedness and (iii) effectively subordinate in right of payment to all of such guarantor’s existing and future secured indebtedness (to the extent of the value of the collateral securing such indebtedness).
Optional Redemption by the Operating Partnership – At any time prior to June 15, 2018, the Operating Partnership may redeem the Notes, in whole or in part, at a price equal to the sum of (i) 100% of the principal amount of the Notes to be redeemed, plus (ii) a make-whole premium and accrued and unpaid interest. On or after June 15, 2018, the Operating Partnership may redeem the Notes, in whole or in part, at (i) 104.219% from June 15, 2018 to June 14, 2019, (ii) 102.813% from June 15, 2019 to June 14, 2020, (iii) 101.406% from June 15, 2020 to June 14, 2021 and (iv) 100.000% of the principal amount of the Notes from June 15, 2021 and thereafter, in each case plus accrued and unpaid interest.
In addition, on or prior to June 15, 2018, the Operating Partnership may redeem up to 35% of the Notes at 105.625% of the principal amount thereof, plus accrued and unpaid interest, with the net cash proceeds of certain equity offerings consummated by the Company or the Operating Partnership.
Repurchase Obligations by the Operating Partnership – If there is a change of control (as defined in the Indenture) of the Operating Partnership or the Company, the Operating Partnership must offer to purchase the Notes at a price equal to 101% of the principal amount thereof, plus accrued and unpaid interest. In addition, in certain circumstances the Operating Partnership may be required to use the net proceeds of asset sales to purchase a portion of the Notes at 100% of the principal amount thereof, plus accrued and unpaid interest.
Operating Covenants – The Indenture contains certain covenants limiting or prohibiting the ability of the Operating Partnership and certain of its subsidiaries from, among other things, (i) incurring secured or unsecured indebtedness, (ii) entering into sale and leaseback transactions, (iii) making certain dividend payments, distributions and investments, (iv) entering into transactions with affiliates, (v) entering into agreements limiting the ability to make certain transfers and other payments from subsidiaries, (vi) engaging in sales of assets or (vii) engaging in certain mergers, consolidations or transfers of all or substantially all assets. The Indenture also requires the Operating Partnership and the Subsidiary Guarantors to maintain total unencumbered assets of at least 150% of their unsecured debt on a consolidated basis. All of the covenants are subject to a number of important qualifications and exceptions under the Indenture.
Events of Default – The Indenture also contains customary events of default including, but not limited to, nonpayment, breach of covenants, and payment or acceleration defaults in certain other indebtedness of the Company or certain of its subsidiaries. Upon an event of default, the holders of the Notes or the Trustee may declare the Notes due and immediately payable.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The disclosure contained in Item 1.01 above relating to the Indenture is incorporated herein by reference.
Item 3.03 Material Modifications to Rights of Security Holders.
The information set forth under Item 1.01 of this report relating to the Indenture is incorporated by reference in this Item 3.03. The Indenture described in Item 1.01 contains a covenant that restricts the Company’s ability to pay dividends in certain circumstances.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. |
Description | |
| 1.1 | Underwriting Agreement, dated June 4, 2015, by and among DuPont Fabros Technology, L.P., DuPont Fabros Technology, Inc., certain of its subsidiaries and U.S. Bank National Association. | |
| 4.1 | Indenture, dated June 9, 2015, by and among DuPont Fabros Technology, L.P. and U.S. Bank National Association. | |
| 4.2 | First Supplemental Indenture, dated June 9, 2015, by and among DuPont Fabros Technology, L.P., DuPont Fabros Technology, Inc., certain of its subsidiaries and U.S. Bank National Association. | |
| 4.3 | Form of 5.625% Senior Notes due 2023 (included in Exhibit 4.2). | |
| 5.1 | Opinion of Hogan Lovells US LLP regarding the legality of the Notes. | |
| 8.1 | Opinion of Hogan Lovells US LLP regarding certain tax matters. | |
| 23.1 | Consent of Hogan Lovells US LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Hogan Lovells US LLP (included in Exhibit 8.1) | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| DUPONT FABROS TECHNOLOGY, INC. | ||||||
| June 9, 2015 | /s/ Richard A. Montfort, Jr. | |||||
| Richard A. Montfort, Jr. | ||||||
| General Counsel and Secretary | ||||||
EXHIBIT INDEX
| Exhibit No. |
Description | |
| 1.1 | Underwriting Agreement, dated June 4, 2015, by and among DuPont Fabros Technology, L.P., DuPont Fabros Technology, Inc., certain of its subsidiaries and SunTrust Robinson Humphrey, Inc. | |
| 4.1 | Indenture, dated June 9, 2015, by and among DuPont Fabros Technology, L.P. and U.S. Bank National Association. | |
| 4.2 | First Supplemental Indenture, dated June 9, 2015, by and among DuPont Fabros Technology, L.P., DuPont Fabros Technology, Inc., certain of its subsidiaries and U.S. Bank National Association. | |
| 4.3 | Form of 5.625% Senior Notes due 2023 (included in Exhibit 4.2). | |
| 5.1 | Opinion of Hogan Lovells US LLP regarding the legality of the Notes. | |
| 8.1 | Opinion of Hogan Lovells US LLP regarding certain tax matters. | |
| 23.1 | Consent of Hogan Lovells US LLP (included in Exhibit 5.1) | |
| 23.2 | Consent of Hogan Lovells US LLP (included in Exhibit 8.1) | |
Exhibit 1.1
EXECUTION VERSION
$250,000,000
DUPONT FABROS TECHNOLOGY, L.P.
5.625% Senior Notes due 2023
UNDERWRITING AGREEMENT
June 4, 2015
SUNTRUST ROBINSON HUMPHREY, INC.
As Representative of the
Underwriters listed in
Schedule I hereto
c/o SunTrust Robinson Humphrey, Inc.
3333 Peachtree Road NE
Atlanta, GA 30326
Ladies and Gentlemen:
DuPont Fabros Technology, L.P., a Maryland limited partnership (the “Partnership”) and each of the Guarantors (as hereinafter defined) hereby agree with you as follows:
1. Issuance of Notes. Subject to the terms and conditions herein contained, the Partnership proposes to issue and sell to the underwriters listed on Schedule I (the “Underwriters”) for whom you are acting as representative (the “Representative”), $250,000,000 aggregate principal amount of 5.625% Senior Notes due 2023 (each a “Note” and, collectively, the “Notes”). The Notes will be issued pursuant to an indenture (the “Base Indenture”), as amended by a Supplemental Indenture (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), each to be dated as of June 9, 2015, by and among the Partnership, the Guarantors party thereto, and U.S. Bank National Association, as trustee (the “Trustee”).
The Partnership and Parent (as defined below) have prepared and filed with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-3 (File No. 333-204635), which contains a base prospectus (the “Base Prospectus”), to be used in connection with the public offering and sale of the Notes. Such registration statement, as amended, including the financial statements, exhibits and schedules thereto, at each time of effectiveness under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “Act”), including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B or 430C under the Act or the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), is called the “Registration Statement.” Any preliminary prospectus supplement relating to the Notes that is filed with the SEC pursuant to Rule 424(b), together with the Base Prospectus, is hereafter called a “Preliminary Prospectus.” The term “Prospectus” shall mean the final prospectus supplement relating to the Notes that is first filed pursuant to Rule 424(b) after the date and time that this Agreement is executed and delivered by the parties hereto, including the Base Prospectus. Any reference herein to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Exchange Act, and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Partnership filed pursuant to Section 13(a) or 15(d) of the Exchange Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement.
As used herein, “Time of Sale” means 5:35 p.m. (New York City time) on June 4, 2015, which the Partnership has been informed is a time immediately prior to when sales of the Notes were first made. As used herein, “Issuer Free Writing Prospectus” means the issuer free writing prospectuses as defined in Rule 433 of the Act, if any, identified in Schedule II hereto, and “Time of Sale Document” means the Preliminary Prospectus, as amended or supplemented immediately prior to the Time of Sale, together with the pricing term sheet attached hereto as Schedule III, which includes pricing terms and other information with respect to the Notes (the “Pricing Supplement”) together with the Issuer Free Writing Prospectuses. The term “knowledge” (and correlative terms, when used with respect to the Partnership) shall mean to the actual knowledge of the officers of the Parent for itself and on behalf of the relevant entities. All references to “notice” shall mean written notice of such matter, and knowledge of any non-written notice of such matter.
This Agreement, the Base Indenture, the Supplemental Indenture, the Notes and the Guarantees are collectively referred to herein as the “Documents.”
2. Guarantee. Pursuant to the Indenture, DuPont Fabros Technology, Inc. (“Parent”) and the Subsidiary Guarantors shall fully and unconditionally guarantee, on a senior basis, to each holder of the Notes and the Trustee, the payment and performance of the Partnership’s obligations under the Indenture and the Notes (each such subsidiary together with the Parent being referred to herein as a “Guarantor” and each such guarantee being referred to herein as a “Guarantee”).
3. Purchase, Sale and Delivery. On the basis of the representations, warranties, agreements and covenants herein contained and subject to the terms and conditions herein set forth, the Partnership agrees to issue and sell to the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Partnership, the respective principal amount of the Notes set forth opposite such Underwriter’s name in Schedule I hereto, at a purchase price of 97.955% of the aggregate principal amount thereof. Delivery to the Underwriters of and payment for the Notes shall be made at a Closing (the “Closing”) to be held at 10:00 a.m., New York time, on June 9, 2015 (the “Closing Date”) at the New York offices of Davis Polk & Wardwell LLP.
The Partnership shall deliver to the Underwriters one or more certificates representing the Notes in definitive form, registered in such names and denominations as the Underwriters may request, against payment by the Underwriters of the purchase price therefor by immediately available Federal funds bank wire transfer to such bank account or accounts as the Partnership shall designate to the Underwriters at least two business days prior to the Closing. The certificates representing the Notes in definitive form shall be made available to the Underwriters for inspection at the New York offices of Davis Polk & Wardwell LLP (or such other place as shall be reasonably acceptable to the Underwriters) not later than 10:00 a.m. one business day immediately preceding the Closing Date. Notes to be represented by one or more definitive global securities in book-entry form will be deposited on the Closing Date, by or on behalf of the Partnership, with The Depository Trust Company (“DTC”) or its designated custodian, and registered in the name of Cede & Co.
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4. Representations and Warranties of the Partnership and the Guarantors. The Partnership and the Guarantors jointly and severally represent and warrant to the Underwriters that, as of the date hereof and as of the Closing Date:
| (a) | The Partnership has been since the time of initial filing of the Registration Statement and continues to be a “well-known seasoned issuer” (as defined in Rule 405) eligible to use Form S-3 for the offering of the Notes, including not having been an “ineligible issuer” (as defined in Rule 405) at any such time or date. |
| (b) | No stop order suspending the effectiveness of the Registration Statement is in effect, the SEC has not issued any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus and no proceedings for such purpose or pursuant to Section 8A or Rule 401(g)(2) of the Act have been instituted or are pending or, to the best knowledge of the Partnership and the Guarantors, are contemplated or threatened by the SEC. |
| (c) | Each of the Preliminary Prospectus and the Prospectus when filed complied in all material respects with the Act. Each of the Registration Statement and any post-effective amendment thereto, at each time of effectiveness, at the date hereof and at the Closing Date, complied and will comply in all material respects with the Act and did not and will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 4(c) do not apply to statements or omissions made in reliance upon and in conformity with information relating to the Underwriters and furnished to the Partnership in writing by the Underwriters expressly for use in the Time of Sale Document or the Prospectus or any amendment or supplement thereto, which such information is set forth in Section 12 hereto. |
| (d) | (i) The Time of Sale Document, at the Time of Sale, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading and (ii) the Prospectus, as of its date and at the Closing Date, as then amended or supplemented by the Partnership, if applicable, will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the representations and warranties set forth in this Section 4(d) do not apply to statements or omissions made in reliance upon and in conformity with information relating to the Underwriters and furnished to the Partnership in writing by the Underwriters expressly for use in the Time of Sale Document or the Prospectus or any amendment or supplement thereto, which such information is set forth in Section 12 hereto. No injunction or order has been issued that would prevent or suspend the issuance or sale of any of the Notes (including the Guarantees) or the use of the Time of Sale Document, the Prospectus or any amendment or supplement thereto, in any jurisdiction. No statement of material fact included in the Prospectus has been omitted from the Time of Sale Document and no statement of material fact included in the Time of Sale Document that is required to be included in the Prospectus has been omitted therefrom. |
| (e) | The documents incorporated by reference in each of the Time of Sale Document and the Prospectus, when filed with the SEC, conformed or will conform, as the case may be, in all material respects to the requirements of the Exchange Act and the rules and regulations of the SEC thereunder, and did not and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
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| (f) | Each corporation, partnership, or other entity in which the Parent, directly or indirectly through any of its subsidiaries, owns more than fifty percent (50%) of any class of equity securities or interests is listed on Schedule IV attached hereto (the “Subsidiaries”). |
| (g) | The Parent and each of the Subsidiaries has been duly organized or formed, as the case may be, is validly existing and in good standing as a corporation or other business entity under the laws of its jurisdiction of organization and is duly qualified to do business and in good standing as a foreign corporation or other business entity in each jurisdiction in which its ownership or lease of property or the conduct of its businesses requires such qualification, except where the failure to be so qualified or in good standing could not reasonably be expected to have a material adverse effect on (i) the condition (financial or otherwise), results of operations, stockholders’ equity, properties, business or prospects of the Parent and the Subsidiaries, taken as a whole or (ii) the performance of the Partnership and the Guarantors of their respective obligations under this Agreement (each, a “Material Adverse Effect”). |
| (h) | All of the issued and outstanding shares of capital stock of the Parent have been duly authorized and validly issued, are fully paid and nonassessable, and were not issued in violation of, and are not subject to, any preemptive or similar rights. The table under the caption “Capitalization” in the Time of Sale Document and the Prospectus (including the footnotes thereto) sets forth, as of its date, the capitalization of the Partnership. All of the outstanding shares of capital stock or other equity interests of each of the Subsidiaries, are owned, directly or indirectly, by the Parent or Partnership, free and clear of all liens, security interests, mortgages, pledges, charges, equities, claims or restrictions on transferability or encumbrances of any kind (collectively, “Liens”), other than those imposed by the Act and the securities or “Blue Sky” laws of certain domestic or foreign jurisdictions, except for (x) such Liens as are not, individually or in the aggregate, material and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or (y) Liens disclosed in the Time of Sale Document and the Prospectus. Except as disclosed in the Time of Sale Document and the Prospectus (including the right to redeem units of partnership interest in the Partnership for shares of common stock of the Parent), there are no outstanding (A) options, warrants or other rights to purchase from the Parent or any of the Subsidiaries, (B) agreements, contracts, arrangements or other obligations of the Parent or any of the Subsidiaries to issue or (C) other rights to convert any obligation into or exchange any securities for, in the case of each of clauses (A) through (C), shares of capital stock of or other ownership or equity interests in the Parent or any of the Subsidiaries. |
| (i) | The Guarantors that are corporations have all requisite corporate power and authority, and the Partnership and each of the Guarantors that are limited partnerships, limited liability companies or other entities have all the requisite partnership or other power and authority, to execute, deliver and perform their respective obligations under the Documents to which they are a party and to consummate the transactions contemplated thereby. |
| (j) | This Agreement has been duly and validly authorized, executed and delivered by the Partnership and the Guarantors. The Indenture has been duly and validly authorized by the Partnership and the Guarantors. The Indenture, when executed and delivered by the Partnership and the Guarantors, will constitute a legal, valid and binding obligation of each of the Partnership and Guarantors, enforceable against each of the Partnership and the Guarantors in accordance with its terms, except that (A) the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought and (B) any rights to indemnity or contribution thereunder may be limited by the federal and state securities laws and public policy considerations. |
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| (k) | The Notes, when issued, will be in the form contemplated by the Indenture. When executed and delivered by the Partnership and the Guarantors, the Indenture will meet the requirements for qualification under the Trust Indenture Act of 1939, as amended (the “TIA”). The Notes have been duly and validly authorized by the Partnership and, when delivered to and paid for by the Underwriters in accordance with the terms of this Agreement and the Indenture, will have been duly executed, issued and delivered and will be legal, valid and binding obligations of the Partnership, entitled to the benefits of the Indenture, and enforceable against the Partnership in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought. |
| (l) | The Guarantees have been duly and validly authorized by the Guarantors and, when executed by the Guarantors, will have been duly executed, issued and delivered and will be legal, valid and binding obligations of the Guarantors, entitled to the benefits of the Indenture and enforceable against the Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought. The execution, delivery and performance of the Guarantees have been duly and validly authorized by each of the Guarantors, and when executed and delivered by each Guarantor in accordance with the terms of the Indenture (assuming the due authorization, execution and delivery of the Indenture by the Trustee and due authentication and delivery of such Guarantees by the Trustee in accordance with the Indenture), will be legal, valid and binding obligations of the Guarantors, entitled to the benefits of the Indenture, and enforceable against each of the Guarantors in accordance with their terms, except that the enforcement thereof may be subject to (i) bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent conveyance or other similar laws now or hereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (whether applied by a court of law or equity) and the discretion of the court before which any proceeding therefor may be brought. |
| (m) | Neither the Parent nor any of the Subsidiaries is in violation of its certificate of incorporation, by-laws or other organizational documents (the “Charter Documents”). Neither the Parent nor any of the Subsidiaries is (i) in violation of any Federal, state, local or foreign statute, law (including, without limitation, common law) or ordinance, or any judgment, decree, rule, regulation or order (collectively, “Applicable Law”) of any federal, state, local or other governmental authority, governmental or regulatory agency or body, court, arbitrator or self-regulatory organization, domestic or foreign (each, a “Governmental Authority”) applicable to any of them or any of their respective properties, or (ii) in breach of or default under any bond, debenture, note or other evidence of indebtedness, indenture, mortgage, deed of trust, lease or any other agreement or instrument to which any of them is a party or by which any of them or their respective property is bound (collectively, “Applicable Agreements”), except for such violations, breaches or defaults under clauses (i) or (ii) that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, there exists no condition that, with the passage of time or otherwise, would (a) constitute a violation of such Charter Documents or, to the knowledge of the Partnership and the Guarantors, Applicable Laws, (b) constitute a breach of or default under any Applicable Agreement or (c) result in the imposition of any penalty on the Parent or any of its Subsidiaries or the acceleration of any indebtedness of the Parent or any of its Subsidiaries. |
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| (n) | The execution, delivery and performance of the Documents, the consummation of the transactions contemplated therein and the application of the proceeds from the Offering as described under “Use of Proceeds” in the Time of Sale Document and Prospectus will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, impose any Lien upon any property or assets of the Parent or any of the Subsidiaries, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement, license or other agreement or instrument to which the Parent or any of the Subsidiaries is a party or by which the Parent or any of the Subsidiaries is bound or to which any of the property or assets of the Parent or any of the Subsidiaries is subject; (ii) result in any violation of the provisions of the charter or by-laws (or similar organizational documents) of the Parent or any of the Subsidiaries; or (iii) result in any violation of Applicable Laws, except in the case of clauses (i) and (iii), for such conflicts, breaches, violations, impositions or defaults that could not reasonably be expected to have a Material Adverse Effect. |
| (o) | When executed and delivered, the Documents will conform in all material respects to the descriptions thereof in the Time of Sale Document and the Prospectus. |
| (p) | No consent, approval, authorization or order of, or filing or registration with any Governmental Authority is required for the issuance and sale by the Partnership of the Notes (including the issuance of the Guarantees by the Guarantors) to the Underwriters or the consummation by the Partnership or the Guarantors of the other transactions contemplated hereby and the application of the proceeds from the Offering as described under “Use of Proceeds” in the Time of Sale Document and Prospectus, except such as have been obtained, such as may be required under state securities or “Blue Sky” laws in connection with the purchase and resale of the Notes (including the Guarantees) by the Underwriters. |
| (q) | Except as disclosed in the Time of Sale Document and the Prospectus, there is no action, claim, suit, demand, hearing, notice of violation or deficiency, or proceeding, domestic or foreign (collectively, “Proceedings”), pending or threatened, in each case of which the Partnership or the Guarantors has knowledge, to which the Parent or any of the Subsidiaries is a party or to which any property or assets of the Parent or any of the Subsidiaries is subject, that either (i) seeks to restrain, enjoin, prevent the consummation of, or otherwise challenge any of the Documents or any of the transactions contemplated therein, or (ii) would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Neither the Parent nor any of the Subsidiaries is subject to any judgment, order, decree, rule or regulation of any Governmental Authority that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. |
| (r) | Each of the Parent and the Subsidiaries possess all licenses, permits, certificates, consents, orders, approvals and other authorizations from, and has made all declarations and filings with, all Governmental Authorities, presently required or necessary to own or lease, as the case may be, and to operate their respective properties and to carry on their respective businesses as now or proposed to be conducted as set forth in the Time of Sale Document and the Prospectus (“Permits”), except where the failure to obtain such Permits would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; each of the Parent and its Subsidiaries has fulfilled and performed all of its obligations with respect to such Permits and no event has occurred which allows, or after notice or lapse of time would allow, revocation or termination thereof or results in any other impairment of the rights of the holder of any such Permit, except for any of the foregoing that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and none of the Parent or its respective Subsidiaries has received any notice of any proceeding relating to revocation or modification of any such Permit, except as disclosed in the Time of Sale Document and the Prospectus or except where such revocation or modification would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. |
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| (s) | The Parent and the Subsidiaries have good and marketable title in fee simple to all real property and good and marketable title to all personal property owned by them, in each case free and clear of all liens, encumbrances and defects, except such as are described in the Time of Sale Document and Prospectus or such as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Parent and the Subsidiaries; and all assets held under lease by the Parent or any Subsidiary are held by them under valid, subsisting and enforceable leases, with such exceptions as do not materially interfere with the use made and proposed to be made of such assets by the Parent and the Subsidiaries. Each of the properties of the Parent or any Subsidiary complies with all applicable codes, laws and regulations (including without limitation, building and zoning codes, laws and regulations and laws relating to access to such properties), except if and to the extent disclosed in the Time of Sale Document and the Prospectus or except for such failures to comply that would not, individually or in the aggregate, reasonably be expected to materially affect the value of such property or interfere in any material respect with the use made and proposed to be made of such property by the Parent or any Subsidiary. Neither the Parent nor any Subsidiary has received from any Governmental Authority any written notice of any condemnation of, or zoning change affecting, the properties of the Parent or any Subsidiary or any part thereof, and neither the Partnership nor any of the Guarantors knows of any such condemnation or zoning change which is threatened, which if consummated, would reasonably be expected to have, in the aggregate, a Material Adverse Effect. Any loans secured by mortgages or deeds of trust encumbering the properties of the Parent or any of the Subsidiaries are not cross-defaulted or cross-collateralized to any property not owned directly or indirectly by the Parent or any of the Subsidiaries. No non-Guarantor Subsidiary holds participating interests in any loans secured by mortgages or deeds of trust encumbering the properties of the Partnership or any of the Guarantors. |
| (t) | True, correct and complete copies of all leases, amendments, exhibits, schedules or other documents that comprise the leases that the Parent or any of the Subsidiaries have entered into and that are currently in effect (the “Leases”) have been made available for review by the Underwriters or their counsel. Other than the Leases, there are no other leases or similar arrangements that are material to the Parent between the Parent or any Subsidiary with a tenant under a Lease relating to any of properties of the Parent or any of the Subsidiaries which has not been provided to the Underwriters or their counsel. Except as otherwise described in the Time of Sale Document: (a) to the knowledge of the Partnership or any of the Guarantors, all of the Leases, and, all guarantees related thereto, if any, are in full force and effect; (b) no tenant has asserted in writing any defense or set-off against the payment of rent in connection with the Leases nor has any tenant contested any tax, operating cost or other escalation payment or occupancy charge, or any other amounts payable under its Leases; (c) none of the Parent or any of the Subsidiaries has waived in writing any material provision under any Lease; (d) to the knowledge of the Partnership or any the Guarantors, there are no uncured events of default, or events that with the giving of notice or passage of time, or both, would constitute an event of default, by any tenant under any of the terms and provisions of the Leases, except as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect; and (e) no tenant under any of the Leases has a right of first refusal to purchase the premises demised under such Lease. |
| (u) | Except as disclosed in the Time of Sale Document and the Prospectus, or as would not, in the aggregate, reasonably be expected to have a Material Adverse Effect, all entitlements necessary for development and/or renovation of each of the properties of the Parent and the Subsidiaries |
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| planned for development, material expansion or renovation as described in the Time of Sale Document or the Prospectus as having been vested or entitled with development rights have been obtained, except for such approvals that the Partnership and the Guarantors expect will be issued in normal course. With respect to any other property of the Parent or any of the Subsidiaries currently planned for development, material expansion or renovation and which is not described in the Time of Sale Document or the Prospectus as having received all necessary entitlements, the Partnership and the Guarantors expect that such entitlements will be issued in normal course. |
| (v) | There are no material contracts, letters of intent, term sheets, agreements, arrangements or understandings with respect to the direct or indirect acquisition or disposition by any of the Parent or any of the Subsidiaries of interests in assets or real property that is not described in the Time of Sale Document and the Prospectus. |
| (w) | All Tax returns required to be filed by the Parent and each of the Subsidiaries have been filed and all such returns are true, complete, and correct in all material respects. All material Taxes that are due from the Parent and its respective Subsidiaries have been paid other than those (i) currently payable without penalty or interest or (ii) being contested in good faith and by appropriate proceedings and for which adequate reserves have been established in accordance with generally accepted accounting principles of the United States, consistently applied (“GAAP”). To the knowledge of the Partnership or any of the Guarantors, after reasonable inquiry, there are no actual or proposed Tax assessments against the Parent or any of the Subsidiaries that would, individually or in the aggregate, have a Material Adverse Effect. The accruals and reserves on the books and records of the Parent and its respective Subsidiaries in respect of any material Tax liability for any period not finally determined are adequate to meet any assessments of Tax for any such period. Except as disclosed in the Time of Sale Document and the Prospectus, to the knowledge of the Partnership or any of the Guarantors, there is no pending or threatened special assessment, tax proceeding or other action which could increase the real property taxes or assessments of the Parent or any of the Subsidiaries. For purposes of this Agreement, the term “Tax” and “Taxes” shall mean all Federal, state, local and foreign taxes, and other assessments of a similar nature (whether imposed directly or through withholding), including any interest, additions to tax, or penalties applicable thereto. |
| (x) | Each of the Parent and the Subsidiaries owns, or is licensed under, and has the right to use, all patents, patent rights, licenses, inventions, copyrights, know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures), trademarks, service marks and trade names (collectively, “Intellectual Property”) reasonably necessary for the conduct of its businesses, free and clear, as of the Closing Date, of all Liens, other than as set forth in the Time of Sale Document and the Prospectus and other than as are not, individually or in the aggregate, material and would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. None of the Parent or the Guarantors is aware of any claims or notices of any potential claim that have been asserted by any person challenging the use of any Intellectual Property by the Parent or any of the Subsidiaries or questioning the validity or effectiveness of the Intellectual Property or any license or agreement related thereto (other than any claims that, if successful, would not, individually or in the aggregate, have a Material Adverse Effect). Neither the Parent nor any of the Guarantors has any reason to believe that the use of Intellectual Property by the Parent or any of the Subsidiaries infringes on the Intellectual Property rights of any other person. |
| (y) | The Parent, together with the Subsidiaries, (i) makes and keeps books and records that are accurate in all material respects and (ii) maintains and has maintained a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorization, (B) transactions are recorded |
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| as necessary to permit preparation of financial statements in conformity with GAAP, and to maintain asset accountability, (C) access to assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences. |
| (z) | The consolidated financial statements and related notes of the Parent and its consolidated subsidiaries and the Partnership and its consolidated subsidiaries, each contained, or incorporated by reference, in the Time of Sale Document and the Prospectus (the “Financial Statements”) present fairly the financial position, results of operations and cash flows of the Parent and its consolidated subsidiaries and the Partnership and its consolidated subsidiaries, as of the respective dates and for the respective periods to which they apply and have been prepared in accordance with GAAP and the requirements of Regulation S-X of the Act. The other financial data set forth under “Summary—Summary Financial Information and Other Data,” “Ratio of Earnings to Fixed Charges” and “Capitalization” included in the Time of Sale Document and the Prospectus, and similar sections incorporated by reference in the Time of Sale Document and the Prospectus, present fairly the financial position and results of operations of the Partnership and its consolidated subsidiaries as of the respective dates and for the respective periods indicated. |
| (aa) | The statistical and market and industry-related data included in the Time of Sale Document and the Prospectus are based on or derived from sources that the Partnership and the Guarantors believe to be reliable and accurate. |
| (bb) | Subsequent to the respective dates as of which information is given in the Time of Sale Document and the Prospectus, except as disclosed in the Time of Sale Document and the Prospectus, (i) neither the Parent nor any of the Subsidiaries has incurred any liabilities, direct or contingent, that are material, individually or in the aggregate, to the Parent, or has entered into any transactions not in the ordinary course of business, (ii) there has not been any material decrease in the capital stock or any material increase in long-term indebtedness or any material increase in short-term indebtedness of the Parent, or any payment of or declaration to pay any dividends or any other distribution with respect to the Parent, and (iii) there has not been any material adverse change in the properties, business, prospects, operations, earnings, assets, liabilities or condition (financial or otherwise) of the Parent and the Subsidiaries in the aggregate (each of clauses (i), (ii) and (iii), a “Material Adverse Change”). To the knowledge of the Partnership or any of the Guarantors, there is no event that is reasonably likely to occur, which if it were to occur, would, individually or in the aggregate, have a Material Adverse Effect which is not disclosed in the Time of Sale Document and the Prospectus. |
| (cc) | No “nationally recognized statistical rating organization” (as such term is defined for purposes of Section 3(a)(62) under the Exchange Act) (i) has imposed (or has informed the Partnership or the Guarantors that it is considering imposing) any condition (financial or otherwise) on the Parent or any of the Subsidiaries retaining any rating assigned to the Parent or any of the Subsidiaries or to any securities of the Parent or any of the Subsidiaries, or (ii) has indicated to the Partnership or the Guarantors that it is considering (A) the downgrading, suspension, or withdrawal of, or any review for a possible change that does not indicate the direction of the possible change in, any rating so assigned, or (B) any change in the outlook for any rating of the Parent or any of the Subsidiaries or any securities of the Parent or any of the Subsidiaries (other than an announcement with positive implications of a possible upgrading). |
| (dd) | At the Closing Date, after giving pro forma effect to the Offering and the use of proceeds therefrom as indicated in the “Use of Proceeds” section of the Time of Sale Document and Prospectus, the Partnership and each Guarantor will be Solvent. As used in this paragraph, the |
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| term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Partnership and each Guarantor is not less than the total amount required to pay the liabilities of the Partnership and each Guarantor on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured; (ii) the Partnership and each Guarantor is able to pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business; (iii) assuming consummation of the issuance of the Notes and Guarantees as contemplated by this Agreement and the Time of Sale Document and Prospectus, neither the Partnership nor any Guarantor is incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature; and (iv) neither the Partnership nor any Guarantor is engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Partnership or any Guarantor is engaged. |
| (ee) | Neither the Partnership nor any of the Guarantors has and, to each of their knowledge, no one acting on any of their behalf has, (i) taken, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Partnership or the Guarantors to facilitate the sale or resale of any of the Notes, (ii) sold, bid for, purchased, or paid anyone any compensation for soliciting purchases of any of the Notes, or (iii) except as disclosed in the Time of Sale Document and the Prospectus, paid or agreed to pay to any person any compensation for soliciting another to purchase any other securities of the Partnership or the Guarantors. |
| (ff) | Each of the Parent, the Subsidiaries, and each ERISA Affiliate has fulfilled its obligations, if any, under the minimum funding standards of Section 302 of the United States Employee Retirement Income Security Act of 1974, as amended (“ERISA”) with respect to each “pension plan” (as defined in Section 3(2) of ERISA), subject to Section 302 of ERISA which the Parent, the Subsidiaries, or any ERISA Affiliate sponsors or maintains, or with respect to which it has (or within the last three years had) any obligation to make contributions, and each such plan is in compliance in all material respects with the presently applicable provisions of ERISA and the Internal Revenue Code of 1986, as amended (the “Code”). Neither the Parent, the Subsidiaries, nor any ERISA Affiliate has incurred any unpaid liability to the Pension Benefit Guaranty Corporation (other than for the payment of premiums in the ordinary course) or to any such plan under Title IV of ERISA. “ERISA Affiliate” means a corporation, trade or business that is, along with the Parent or any Subsidiary, a member of a controlled group of corporations or a controlled group of trades or businesses, as described in Section 414 of the Code or Section 4001 of ERISA. |
| (gg)(i) | Neither the Parent nor any of the Subsidiaries is party to or bound by any collective bargaining agreement with any labor organization, and, to the knowledge of the Partnership or any of the Guarantors, no union organizing activities are taking place that, could, individually or in the aggregate, have a Material Adverse Effect; and (ii) no labor dispute by the employees of the Parent or any of the Subsidiaries exists, or, to the knowledge of the Parent and the Subsidiaries, is imminent that would be reasonably expected, individually or in the aggregate, to have a Material Adverse Effect. |
| (hh) | None of the transactions contemplated in the Documents or the application of the proceeds by the Parent or any of the Subsidiaries of the proceeds of the Notes will violate or result in a violation of Section 7 of the Exchange Act, (including, without limitation, Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the Board of Governors of the Federal Reserve System). |
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| (ii) | Neither the Partnership nor any of the Guarantors is, and after giving effect to the Offering and sale of the Notes and the application of the proceeds thereof as described in the Time of Sale Document and the Prospectus, neither will be, an “investment company” as defined in the Investment Company Act of 1940 (the “Investment Company Act”). |
| (jj) | Neither the Partnership nor any of the Guarantors has engaged any broker, finder, commission agent or other person (other than the Underwriters) in connection with the Offering or any of the transactions contemplated in the Documents, and neither the Partnership nor any of the Guarantors is under any obligation to pay any broker’s fee or commission in connection with such transactions (other than commissions or fees to the Underwriters). |
| (kk) | Except as described in the Time of Sale Document and the Prospectus, each of the Parent and the Subsidiaries is (i) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of the environment or hazardous or toxic substances of wastes, pollutants or contaminants (“Environmental Laws”), (ii) has received and is in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct its respective businesses and (iii) has not received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, in each case except where such non-compliance with Environmental Laws, failure to receive and comply with required permits, licenses or other approvals, or liability would not, individually or in the aggregate, have a Material Adverse Effect, whether or not arising from transactions in the ordinary course of business. Neither the Parent nor any of the Subsidiaries has been named as a “potentially responsible party” under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended. There are no liabilities (whether accrued, contingent, direct, indirect, determined or determinable or otherwise) of or relating to the Parent or any of the Subsidiaries under or relating to any Environmental Law, which liabilities, individually or in the aggregate, would reasonably be expected to result in a Material Adverse Effect. |
| (ll) | As of the Closing Date, and except as disclosed in the Time of Sale Document and the Prospectus, there will be no encumbrances or restrictions on the ability of any Subsidiary of the Parent (x) to pay dividends or make other distributions on such Subsidiary’s capital stock or to pay any indebtedness to the Parent or any other Subsidiary of the Parent, (y) to make loans or advances or pay any indebtedness to, or investments in, the Parent or any other Subsidiary of the Parent or (z) to transfer any of its property or assets to the Parent or any other Subsidiary of the Parent. |
| (mm) | Each certificate signed by any officer of the Parent, or any Subsidiary, delivered to the Underwriters shall be deemed a representation and warranty by the Parent or any such Subsidiary thereof (and not individually by such officer) to the Underwriters with respect to the matters covered thereby. |
| (nn) | Each of the Parent and its Subsidiaries is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as the Parent believes is adequate for the conduct of the business and the value of its properties. All policies of insurance insuring the Parent or any of the Subsidiaries or their respective businesses, assets, employees, officers and directors are in full force and effect. The Parent and the Subsidiaries are in compliance with the terms of such policies and instruments in all material respects, and there are no claims by the Parent or any of the Subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause. Neither the Parent nor any such Subsidiary has been refused any insurance coverage sought or applied for, and neither the Parent nor any such Subsidiary has any reason to believe that it will not be able to |
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| renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not, individually or in the aggregate, have a Material Adverse Effect. The Parent and the Subsidiaries currently have title insurance in full force and effect insuring the fee interests in each of their owned real properties, in an amount and with coverage that is commercially reasonable for such property, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. |
| (oo) | The Parent together with the Subsidiaries has established and maintains and evaluates “disclosure controls and procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act) and “internal control over financial reporting” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure controls and procedures are designed to ensure that information required to be disclosed by the Parent in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Parent’s management, including its principal executive and principal financial officers, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure: the Parent’s independent auditors and audit committee have been advised of: (i) all significant deficiencies, if any, in the design or operation of internal controls which could adversely affect the Parent’s ability to record, process, summarize and report financial data and (ii) all fraud, if any, whether or not material, that involves management or other employees who have a role in the Parent’s internal controls; all material weaknesses, if any, in internal controls have been identified to the Parent’s independent auditors and audit committee; since the date of the most recent evaluation of such disclosure controls and procedures and internal controls, there have been no significant changes in internal controls or in other factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses; the principal executive officers (or their equivalents) and principal financial officers (or their equivalents) of the Parent have made all certifications required by the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) and any related rules and regulations promulgated by the SEC, and the statements contained in each such certification are complete and correct; the Parent, the Subsidiaries and the Parent’s directors or board of managers and officers are each in compliance in all material respects with all applicable effective provisions of the Sarbanes-Oxley Act and the rules and regulations of the SEC promulgated thereunder. |
| (pp) | Ernst & Young LLP who have certified the financial statements contained, or incorporated by reference, in the Time of Sale Document and the Prospectus, is an independent registered public accounting firm with respect to the Parent and the Subsidiaries within the applicable rules and regulations adopted by the SEC and the Public Accounting Oversight Board (United States) and as required by the Act. |
| (qq) | The Parent is organized and operated in conformity with the requirements for qualification and taxation as a real estate investment trust (a “REIT”) under the Code and its proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT under the Code. |
| (rr) | The proceeds of the Offering will not be pledged as collateral pursuant to any existing loan, mortgage or deed of trust upon completion of the Offering. |
| (ss) | Neither the Parent nor any of the Subsidiaries, nor, to the knowledge of the Parent or any of the Subsidiaries, any director, officer, agent, employee or other person associated with or acting on behalf of the Parent or any of the Subsidiaries, has (i) used any corporate funds for any unlawful |
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| contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the U.S. Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment. |
| (tt) | The operations of the Parent and the Subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Parent or any of the Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Parent or any of the Subsidiaries, threatened, except, in each case, as would not reasonably be expected to have a Material Adverse Effect. |
| (uu) | Neither the Parent nor any of the Subsidiaries nor, to the knowledge of the Parent or any of the Subsidiaries, any director, officer, agent, employee or affiliate of the Parent or any of the Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Parent and the Subsidiaries will not directly or indirectly use the proceeds of the Offering, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. |
| (vv) | Each Issuer Free Writing Prospectus, when considered together with the Time of Sale Document as of the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
| (ww) | Each Issuer Free Writing Prospectus conformed or will conform in all material respects to the requirements of the Act on the date of first use, and the Partnership has complied with any filing requirements applicable to such Issuer Free Writing Prospectus pursuant to the Act. The Partnership has not made any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus without the prior written consent of the Underwriters. The Partnership has retained in accordance with the Act all Issuer Free Writing Prospectus that were not required to be filed pursuant to the Act. |
| (xx) | The interactive data in eXtensible Business Reporting Language incorporated by reference in the Time of Sale Document and the Prospectus fairly presents the information called for in all material respects and is prepared in accordance with the SEC’s rules and guidelines applicable thereto. |
5. Covenants of the Partnership and the Guarantors. Each of the Partnership and the Guarantors jointly and severally agrees:
| (a) | During the period beginning at the Time of Sale and ending on the later of the Closing Date or such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales by an Underwriter or dealer, including in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, the Time of |
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| Sale Document or the Prospectus, the Partnership shall furnish to the Representative for review a copy of each such proposed amendment or supplement, and the Partnership shall not file or use any such proposed amendment or supplement to which the Representative reasonably objects. |
| (b) | After the date of this Agreement and during the Prospectus Delivery Period, the Partnership shall promptly advise the Representative in writing (i) when the Registration Statement, if not effective at the Time of Sale, shall have become effective, (ii) of the receipt of any comments of, or requests for additional or supplemental information from, the SEC, (iii) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus, (iv) of the time and date that any post-effective amendment to the Registration Statement becomes effective, and (v) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or of any order or notice preventing or suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus, or of any receipt by the Partnership of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or of the threatening or initiation of any proceedings for any of such purposes (including any notice or order pursuant to Section 8A or Rule 401(g)(2) of the Act). The Partnership shall use commercially reasonable efforts to prevent the issuance of any such stop order or notice of prevention or suspension of such use. If the SEC shall enter any such stop order or issue any such notice at any time, the Partnership will use commercially reasonable efforts to obtain the lifting or reversal of such order or notice at the earliest possible moment, or, subject to Section 5(a), will file an amendment to the Registration Statement or will file a new registration statement and use its best efforts to have such amendment or new registration statement declared effective as soon as practicable. Additionally, the Partnership agrees that it shall comply with the provisions of Rules 424(b) and 430B, as applicable, under the Act, including with respect to the timely filing of documents thereunder, and will use commercially reasonable efforts to confirm that any filings made by the Partnership under such Rule 424(b) were received in a timely manner by the SEC. |
| (c) | If by the third anniversary (the “Renewal Deadline”) of the initial effective date of the Registration Statement, any of the Notes remain unsold by the Underwriters, the Partnership will file, if it has not already done so and is eligible to do so, a new automatic shelf registration statement relating to the Notes, in a form satisfactory to the Representative. If at the Renewal Deadline the Partnership is no longer eligible to file an automatic shelf registration statement, the Partnership will, if it has not already done so, file a new shelf registration statement relating to the Notes, in a form satisfactory to the Representative and will use its best efforts to cause such registration statement to be declared effective within 180 days after the Renewal Deadline. The Partnership will take all other action necessary or appropriate to permit the public offering and sale of the Notes to continue as contemplated in the expired registration statement relating to the Notes. References herein to the Registration Statement shall include such new automatic shelf registration statement or such new shelf registration statement, as the case may be. |
| (d) | During the Prospectus Delivery Period, the Partnership and the Parent, as applicable, will file all documents required to be filed with the SEC and the New York Stock Exchange pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act. |
| (e) | The Partnership will prepare and will file the Pricing Supplement pursuant to Rule 433(d) under the Act within the time required by such rule. |
| (f) | The Partnership represents that it has not made, and agrees that, unless it obtains the prior written consent of the Representative, it will not make, any offer relating to the Notes that constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would |
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| constitute a “free writing prospectus” (as defined in Rule 405 of the Act) or a portion thereof required to be filed by the Partnership with the SEC or retained by the Partnership under Rule 433 of the Act; provided that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule II hereto and any electronic road show. Any such free writing prospectus consented to by the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Partnership agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with the SEC, legending and record keeping. The Partnership consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433, or (b) contains only (1) information describing the preliminary terms of the Notes or their offering, (2) information that describes the final terms of the Notes or their offering and that is included in the Pricing Supplement or (3) information permitted under Rule 134 under the Act; provided that each Underwriter severally covenants with the Partnership not to take any action without the Partnership’s consent which consent shall be confirmed in writing that would result in the Partnership being required to file with the SEC under Rule 433(d) under the Act a free writing prospectus prepared by or on behalf of such Underwriter that otherwise would not be required to be filed by the Partnership thereunder, but for the action of the Underwriters. |
| (g) | If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Time of Sale Document or the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if it shall be necessary to amend or supplement the Time of Sale Document or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Time of Sale Document or the Prospectus, in order to make the statements therein, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading, or if in the opinion of the Representative it is otherwise necessary to amend or supplement the Registration Statement, the Time of Sale Document or the Prospectus, or to file under the Exchange Act any document incorporated by reference in the Time of Sale Document or the Prospectus, or to file a new registration statement containing the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, the Partnership agrees to (i) notify the Representative of any such event or condition and (ii) promptly prepare (subject to Section 5(a) and 5(f) hereof), file with the SEC (and use its best efforts to have any amendment to the Registration Statement or any new registration statement to be declared effective) and furnish at its own expense to the Underwriters and to dealers, amendments or supplements to the Registration Statement, the Time of Sale Document or the Prospectus, or any new registration statement, necessary in order to make the statements in the Time of Sale Document or the Prospectus as so amended or supplemented, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading or so that the Registration Statement, the Time of Sale Document or the Prospectus, as amended or supplemented, will comply with law. |
| (h) | The Partnership will furnish to the Representative and counsel for the Underwriters signed copies of the Registration Statement and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to be incorporated by reference therein) and, during the Prospectus Delivery Period, as many copies of each Preliminary Prospectus, the Prospectus and any supplement thereto and the Time of Sale Document as the Representative may reasonably request. |
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| (i) | Prior to 5:00 p.m., New York City time, on the New York Business Day next succeeding the date of this Agreement and from time to time, to furnish the Underwriters with written and electronic copies of the Prospectus in New York City in such quantities as each Underwriter may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required at any time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the TIA, to notify you and upon your request to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) in connection with sales of any of the Notes at any time nine months or more after the time of issue of the Prospectus, upon your request but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many written and electronic copies as you may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act. |
| (j) | To pay the required SEC filing fees relating to the Notes within the time required by Rule 456(b)(1) under the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Act. |
| (k) | To (i) advise the Underwriters promptly after obtaining knowledge (and, if requested by the Underwriters, confirm such advice in writing) of the issuance by any state securities commission of any stop order suspending the qualification or exemption from qualification of any of the Notes for offer or sale in any jurisdiction, or the initiation of any proceeding for such purpose by any state securities commission or other regulatory authority, (ii) use its reasonable best efforts to prevent the issuance of any stop order or order suspending the qualification or exemption from qualification of any of the Notes under any state securities or Blue Sky laws, and (iii) if, at any time, any state securities commission or other regulatory authority shall issue an order suspending the qualification or exemption from qualification of any of the Notes under any such laws, use its reasonable best efforts to obtain the withdrawal or lifting of such order at the earliest possible time. |
| (l) | To cooperate with the Underwriters and the Underwriters’ counsel in connection with the qualification of the Notes under the securities or Blue Sky laws of such jurisdictions as the Underwriters may reasonably request and continue such qualification in effect so long as reasonably required for Exempt Resales. |
| (m) | Whether or not any of the Offering or the transactions contemplated under the Documents are consummated or this Agreement is terminated, to pay (i) all costs, expenses, fees and taxes incident to and in connection with: (A) the preparation, printing, distribution and filing of the Registration Statement, the Base Prospectus, any Preliminary Prospectus, any Issuer Free Writing Prospectus and the Prospectus and all amendments and supplements thereto (including, without limitation, financial statements and exhibits), and all other agreements, memoranda, correspondence and other documents prepared and delivered in connection herewith, (B) the |
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| negotiation, printing, processing and distribution (including, without limitation, word processing and duplication costs) and delivery of, each of the Documents, (C) the preparation, issuance and delivery of the Notes, (D) the qualification of the Notes for offer and sale under the securities or Blue Sky laws of the several states or foreign jurisdictions including Canada (including, without limitation, the reasonable fees and disbursements of the Underwriters’ counsel relating to such registration or qualification which shall in no event exceed $15,000), (E) furnishing such copies of the Time of Sale Document and the Prospectus, and all amendments and supplements thereto, as may reasonably be requested for use by the Underwriters and (F) all expenses incurred in connection with any “road show” presentation to potential investors, other than the cost of any aircraft which shall be split 50-50 between the Partnership and the Underwriters (ii) all fees and expenses of the counsel, accountants and any other experts or advisors retained by the Partnership, (iii) all fees and expenses (including reasonable fees and expenses of counsel) of the Partnership in connection with approval of the Notes by DTC for “book-entry” transfer, (iv) all fees charged by rating agencies in connection with the rating of the Notes and (v) all fees and expenses (including reasonable fees and expenses of counsel) of the Trustee. |
| (n) | To use the proceeds of the Offering in the manner described in the Time of Sale Document and the Prospectus under the caption “Use of Proceeds.” |
| (o) | To make commercially reasonable efforts to do and perform all things reasonably required to be done and performed under the Documents to satisfy the closing conditions set forth in this Agreement. |
| (p) | To comply with the representation letter of the Partnership to DTC relating to the approval of the Notes by DTC for “book entry” transfer. |
| (q) | For a period of twelve months, the Partnership will furnish to the Underwriters copies of all reports and other communications (financial or otherwise) furnished by the Partnership to the Trustee or to the holders of the Notes and, as soon as available, copies of any reports or financial statements furnished to or filed by the Partnership or the Guarantors with the SEC or any national securities exchange on which any class of securities of the Partnership or the Guarantors may be listed; provided, however, that this covenant shall be deemed satisfied to the extent such reports, communications or financial statements are made generally available to the public. |
| (r) | The Partnership shall pay all stamp, documentary and transfer taxes and other duties, if any, which may be imposed by the United States or any political subdivision thereof or taxing authority thereof or therein with respect to the issuance of the Notes or the sale thereof to the Underwriters. |
6. Representations and Warranties of the Underwriters. (a) Each Underwriter, severally and not jointly, represents, warrants and agrees that (i) it has only communicated or caused to be communicated and will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the United Kingdom Financial Services and Markets Act 2000 (the “FSMA”)) received by it in connection with the issue or sale of any Notes in circumstances in which Section 21(1) of the FSMA does not apply to the Partnership; and (ii) it has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to the Notes in, from or otherwise involving the United Kingdom.
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7. Conditions. The obligations of the Underwriters to purchase the Notes under this Agreement are subject to the performance by each of the Partnership and each of the Guarantors of their respective covenants and obligations hereunder and the satisfaction of each of the following conditions:
| (a) | All of the representations and warranties of the Partnership and the Guarantors contained in this Agreement shall be true and correct as of the date hereof and at the Closing Date. On or prior to the Closing Date, the Partnership and each other party to the Documents (other than the Underwriters) shall have performed or complied with all of the agreements and satisfied all conditions on their respective parts to be performed, complied with or satisfied pursuant to this Agreement (other than conditions to be satisfied by such other parties, which the failure to so satisfy would not, individually or in the aggregate, have a Material Adverse Effect). |
| (b) | No injunction, restraining order or order of any nature by a Governmental Authority shall have been issued as of the Closing Date that would prevent or materially interfere with the consummation of the Offering or any of the transactions contemplated under the Documents; and no stop order suspending the qualification or exemption from qualification of any of the Notes (including the Guarantees) in any jurisdiction shall have been issued and no Proceeding for that purpose shall have been commenced or, to the knowledge of the Partnership or any of the Guarantors, be pending or contemplated as of the Closing Date. |
| (c) | No action shall have been taken and no Applicable Law shall have been enacted, adopted or issued by any Governmental Authority that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated under the Documents. No Proceeding shall be pending or, to the knowledge of the Partnership or any of the Guarantors, threatened other than Proceedings that (A) if adversely determined would not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes (including the Guarantees), and (B) would not, individually or in the aggregate, have a Material Adverse Effect. |
| (d) | Subsequent to the date of this Agreement, there shall not have been any Material Adverse Change that would make it impracticable or inadvisable, in the judgment of the Underwriters, to proceed with the offering or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale Document and the Prospectus. |
| (e) | On or after the date hereof, neither S&P nor Moody’s shall have given notice that it has assigned (or is considering assigning) a lower rating to the Notes than the ratings assigned on June 2, 2015 and June 4, 2015, respectively. |
| (f) | The Underwriters shall have received on the Closing Date: |
| (i) | certificates dated the Closing Date, signed by (1) the Chief Executive Officer and (2) the principal financial or accounting officer of the Parent, on behalf of the Partnership and each Guarantor, to the effect that (a) the representations and warranties set forth in Section 4 hereof are true and correct in all material respects with the same force and effect as though expressly made at and as of the Closing Date, (b) the Partnership and each of the Guarantors has each performed and complied with all agreements and satisfied all conditions in all material respects on its part to be performed or satisfied pursuant to this Agreement at or prior to the Closing Date, (c) at the Closing Date, since the date hereof and since the date of the most recent financial statements in the Time of Sale Document and the Prospectus (exclusive of any amendment or supplement thereto after the date hereof), there has been no Material Adverse Effect, other than as described in the Time of Sale Document and the Prospectus (exclusive of any amendment or supplement thereto after the date hereof) and (d) the sale of the Notes has not been enjoined (temporarily or permanently) by any Governmental Authority. |
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| (ii) | a certificate, dated the Closing Date, executed by the Secretary of the Parent, on behalf of the Partnership and each Guarantor, certifying such matters as the Underwriters may reasonably request. |
| (iii) | a certificate of solvency, dated the Closing Date, executed by the principal financial or accounting officer of the Parent, on behalf of the Partnership and each Guarantor, substantially in the form previously approved by the Underwriters or their counsel. |
| (iv) | the opinion of Hogan Lovells US LLP, counsel to the Partnership, dated the Closing Date, in the form of Exhibit A attached hereto. |
| (v) | an opinion, dated the Closing Date, of Davis Polk & Wardwell LLP, counsel to the Underwriters, in form satisfactory to the Underwriters covering such matters as are customarily covered in such opinions. |
| (g) | The Underwriters shall have received from Ernst & Young LLP, an independent registered public accounting firm, with respect to the Parent and the Subsidiaries, (A) a customary comfort letter, dated the date hereof, in form and substance reasonably satisfactory to the Underwriters and their counsel, with respect to the financial statements and certain financial information contained in or incorporated by reference in the Time of Sale Document, and (B) a customary comfort letter, dated the Closing Date, in form and substance reasonably satisfactory to the Underwriters and their counsel, to the effect that Ernst & Young LLP reaffirms the statements made in its letter furnished pursuant to clause (A) with respect to the financial statements and certain financial information of the Parent and the Subsidiaries. |
| (h) | Each of the Documents shall have been executed and delivered by all parties thereto, and the Underwriters shall have received a fully executed original of each Document. |
| (i) | The Underwriters, or their counsel, shall have received copies of all opinions, certificates, letters and other documents delivered under or in connection with the Offering or any transaction contemplated in the Documents as they may reasonably request. |
| (j) | The terms of each Document shall conform in all material respects to the description thereof in the Time of Sale Document and the Prospectus. |
8. Indemnification and Contribution.
| (a) | The Partnership and each of the Guarantors jointly and severally agree to indemnify and hold harmless the Underwriters, their directors, officers and employees, and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any losses, claims, damages or liabilities of any kind to which the Underwriters and their directors, officers, employees or controlling persons may become subject under the Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of the Partnership or such Guarantor, as applicable, (not to be unreasonably withheld, delayed or conditioned), insofar as any such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: |
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| (i) | any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Document or the Prospectus, or any amendment or supplement thereto, or in any “road show” presentation to potential investors previously approved by the Company (a “Road Show Presentation”); or |
| (ii) | the omission or alleged omission to state, in the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Document or the Prospectus, or any amendment or supplement thereto, or in any Road Show Presentation, a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; |
| and, subject to the provisions hereof, will reimburse, as incurred, the Underwriters, their directors, officers, employees and each controlling person for any reasonable legal or other expenses incurred by the Underwriters or their controlling persons in connection with investigating, defending against or appearing as a third-party witness in connection with any such loss, claim, damage, liability or action in respect thereof; provided, however, the Partnership and the Guarantors will not be liable in any such case to the extent (but only to the extent) that such loss, claim, damage or liability resulted from any untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Document or the Prospectus, any amendment or supplement thereto, or any Road Show Presentation in reliance upon and in conformity with written information concerning the Underwriters furnished to the Partnership by the Underwriters specifically for use therein, it being understood and agreed that the only such information furnished by the Underwriters to the Partnership consists of the information described in subsection (b) below. The indemnity agreement set forth in this Section 8 shall be in addition to any liability that the Partnership and the Guarantors may otherwise have to the indemnified parties. |
| (b) | Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless each of the Partnership, each of the Guarantors and their respective directors, officers and each person, if any, who controls the Partnership or any of the Guarantors within the meaning of Section 15 of the Act or Section 20 of the Exchange Act against any losses, claims, damages or liabilities to which the Partnership, the Guarantors or any of their directors, officers or controlling persons may become subject under the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) have resulted solely from (i) any untrue statement or alleged untrue statement of any material fact contained in the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Document or the Prospectus, any amendment or supplement thereto, or any Road Show Presentation or (ii) the omission or the alleged omission to state therein a material fact required to be stated in the Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Document or the Prospectus, any amendment or supplement thereto, or any Road Show Presentation or necessary to make the statements therein not misleading, in each case to the extent (but only to the extent) that such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information concerning such Underwriter, furnished to the Partnership or its agents by such Underwriter specifically for use therein; and, subject to the limitation set forth immediately preceding this clause, will reimburse, as incurred, any reasonable legal or other expenses incurred by the Partnership, each of the Guarantors or any of their directors, officers or controlling persons in connection with any such loss, claim, damage, liability or action in respect thereof. Each of the Partnership and the Guarantors hereby acknowledges that the only information that the Underwriters have furnished to the Partnership or its agents specifically for use in the |
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| Registration Statement, any Preliminary Prospectus, any Issuer Free Writing Prospectus, the Time of Sale Document or the Prospectus or any amendment or supplement thereto, are the second sentence of the fourth paragraph, the fifth paragraph and the six paragraph under the caption “Underwriting” in the Time of Sale Document and the Prospectus. This indemnity agreement will be in addition to any liability that the Underwriters may otherwise have to the indemnified parties. |
| (c) | As promptly as reasonably practicable after receipt by an indemnified party under this Section 8 of notice of the commencement of any action for which such indemnified party is entitled to indemnification under this Section 8, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section 8, notify the indemnifying party of the commencement thereof in writing; but the omission to so notify the indemnifying party (i) will not relieve such indemnifying party from any liability under paragraph (a) or (b) above unless and only to the extent it is materially prejudiced as a result thereof and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraphs (a) and (b) above. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein and, to the extent that it may elect, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel reasonably satisfactory to such indemnified party; provided, however, that if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest, (ii) the defendants in any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be one or more legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, or (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after receipt by the indemnifying party of notice of the institution of such action, then, in each such case, the indemnifying party shall not have the right to direct the defense of such action on behalf of such indemnified party or parties and such indemnified party or parties shall have the right to select separate counsel to defend such action on behalf of such indemnified party or parties at the expense of the indemnifying party. After notice from the indemnifying party to such indemnified party of its election so to assume the defense thereof and approval by such indemnified party of counsel appointed to defend such action, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses, other than reasonable costs of investigation, subsequently incurred by such indemnified party in connection with the defense thereof, unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood, however, that in connection with such action the indemnifying party shall not be liable for the expenses of more than one separate counsel (in addition to local counsel) in any one action or separate but substantially similar actions in the same jurisdiction arising out of the same general allegations or circumstances, designated by the Underwriters in the case of paragraph (a) of this Section 8 or the Partnership in the case of paragraph (b) of this Section 8, representing the indemnified parties under such paragraph (a) or paragraph (b), as the case may be, who are parties to such action or actions), (ii) the indemnifying party has authorized in writing the employment of counsel for the indemnified party at the expense of the indemnifying party or (iii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, in each of which cases the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party and shall be paid as they are incurred. After such notice from the indemnifying party to such indemnified party, the |
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| indemnifying party will not be liable for the costs and expenses of any settlement of such action effected by such indemnified party without the prior written consent of the indemnifying party (which consent shall not be unreasonably withheld), unless such indemnified party waived in writing its rights under this Section 8, in which case the indemnified party may effect such a settlement without such consent. |
| (d) | No indemnifying party shall be liable under this Section 8 for any settlement of any claim or action (or threatened claim or action) effected without its written consent, which shall not be unreasonably withheld, but if a claim or action is settled with its written consent, or if there be a final judgment for the plaintiff with respect to any such claim or action, each indemnifying party jointly and severally agrees, subject to the exceptions and limitations set forth above, to indemnify and hold harmless each indemnified party from and against any and all losses, claims, damages or liabilities (and reasonable legal and other expenses as set forth above) incurred by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld), effect any settlement or compromise of any pending or threatened proceeding in respect of which the indemnified party is or could have been a party, or indemnity could have been sought hereunder by the indemnified party, unless such settlement (A) includes an unconditional written release of the indemnified party, in form and substance satisfactory to the indemnified party, from all liability on claims that are the subject matter of such proceeding and (B) does not include any statement as to an admission of fault, culpability or failure to act by or on behalf of the indemnified party. |
| (e) | In circumstances in which the indemnity agreement provided for in the preceding paragraphs of this Section 8 is unavailable to, or insufficient to hold harmless, an indemnified party in respect of any losses, claims, damages or liabilities (or actions in respect thereof), each indemnifying party, in order to provide for just and equitable contributions, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect (i) the relative benefits received by the indemnifying party or parties, on the one hand, and the indemnified party, on the other, from the Offering or (ii) if the allocation provided by the foregoing clause (i) is not permitted by applicable law, not only such relative benefits but also the relative fault of the indemnifying party or parties, on the one hand, and the indemnified party, on the other, in connection with the statements, omissions or actions or alleged statements, omissions or actions that resulted in such losses, claims, damages or liabilities (or actions in respect thereof). The relative benefits received by the Partnership, on the one hand, and the Underwriters, on the other, shall be deemed to be in the same proportion as the total proceeds from the Offering (before deducting expenses) received by the Partnership bear to the total discounts and commissions received by the Underwriters. The relative fault of the parties shall be determined by reference to, among other things, whether an untrue or alleged untrue statement of a material fact or an omission or alleged omission to state a material fact relates to information supplied by the Partnership, on the one hand, or the Underwriters, on the other, the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement, omission or action or alleged statement, omission or action, and any other equitable considerations appropriate in the circumstances. |
| (f) | The Partnership, the Guarantors and the Underwriters agree that it would not be equitable if the amount of such contribution determined pursuant to the immediately preceding paragraph (e) were determined by pro rata or per capita allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph (e). Notwithstanding any other provision of this Section 8, no Underwriter shall be obligated to make contributions hereunder that in the aggregate exceed the total discounts, |
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| commissions and other compensation received by such Underwriter under this Agreement, less the aggregate amount of any damages that such Underwriter has otherwise been required to pay by reason of the untrue or alleged untrue statements or the omissions or alleged omissions to state a material fact. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligation to contribute hereunder shall be several in proportion to their respective purchase obligations hereunder and not joint. For purposes of the immediately preceding paragraph (e), each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Underwriters, and each director of the Partnership and the Guarantors, each officer of the Partnership and the Guarantors and each person, if any, who controls either of the Partnership or the Guarantors within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have the same rights to contribution as the Partnership and the Guarantors. |
9. Termination. The Underwriters may terminate this Agreement at any time prior to the Closing Date by notice to the Partnership if any of the following has occurred:
| (a) | since the date hereof, any Material Adverse Effect or development resulting in a Material Adverse Effect that could, in the Underwriters’ sole judgment, be expected to (i) make it impracticable or inadvisable to proceed with the offering or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale Document and the Prospectus, or (ii) materially impair the investment quality of any of the Notes (including the Guarantees); |
| (b) | any outbreak or escalation of hostilities or other national or international calamity or crisis, including acts of terrorism, or material adverse change or disruption in economic conditions in, or in the financial markets of, the United States (it being understood that any such change or disruption shall be relative to such conditions and markets as in effect on the date hereof), if the effect of such outbreak, escalation, calamity, crisis, act or material adverse change in the economic conditions in, or in the financial markets of, the United States could be reasonably expected to make it, in the Underwriters’ sole judgment, impracticable or inadvisable to proceed with the offering, sale or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale Document and the Prospectus or to enforce contracts for the sale of any of the Notes; |
| (c) | trading in the Parent’s common stock shall have been suspended by the SEC or the New York Stock Exchange or the suspension or limitation of trading generally in securities on the New York Stock Exchange or the NASDAQ National Market; or |
| (d) | the declaration of a banking moratorium by any Federal or New York State Governmental Authority. |
10. Survival of Representations and Indemnities. The representations and warranties, covenants, indemnities and contribution and expense reimbursement provisions and other agreements, representations and warranties of the Partnership and the Guarantors set forth in or made pursuant to this Agreement shall remain operative and in full force and effect, and will survive, regardless of (i) any investigation, or statement as to the results thereof, made by or on behalf of the Underwriters, (ii) acceptance of the Notes, and payment for them hereunder, and (iii) any termination of this Agreement.
11. Defaulting Underwriter. If, on the Closing Date, any one of the Underwriters shall fail or refuse to purchase Notes that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes which such defaulting Underwriter agreed but failed or refused
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to purchase is not more than one tenth of the aggregate principal amount of Notes to be purchased on such date, the other Underwriters shall be obligated severally in the proportions that the principal amount of Notes set forth opposite their respective names in Schedule I hereto bears to the aggregate principal amount of Notes set forth opposite the names of all such non-defaulting Underwriters to purchase the Notes which such defaulting Underwriter agreed but failed or refused to purchase on such date. If, on the Closing Date any Underwriter shall fail or refuse to purchase Notes which it or they have agreed to purchase hereunder on such date and the aggregate principal amount of Notes with respect to which such default occurs is more than one tenth of the aggregate principal amount of Notes to be purchased on such date, and arrangements satisfactory to the non defaulting Underwriters and the Partnership for the purchase of such Notes are not made within 36 hours after such default, then the Partnership shall have an additional 36 hours to procure additional purchasers. If the Partnership fails to procure additional purchasers, this Agreement shall terminate without liability on the part of the non-defaulting Underwriters or of the Partnership or any Guarantor. Any action taken under this paragraph shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
12. Information Supplied by Underwriters. The statements set forth in the second sentence of the fourth paragraph, the fifth paragraph and the sixth paragraph under the caption “Underwriting” in the Time of Sale Document and the Prospectus constitute the only information furnished by such Underwriters to the Partnership or the Subsidiaries for the purposes of Sections 4(a) and 8 hereof.
13. No Fiduciary Relationship. The Partnership and the Guarantors hereby acknowledge that the Underwriters are acting solely as Underwriters in connection with the purchase and sale of the Notes. The Partnership and the Guarantors further acknowledge that the Underwriters are acting pursuant to a contractual relationship created solely by this Agreement entered into on an arm’s length basis, and in no event do the parties intend that the Underwriters act or be responsible as a fiduciary to either the Partnership or any of the Guarantors or their respective management, stockholders or creditors or any other person in connection with any activity that the Underwriters may undertake or have undertaken in furtherance of the purchase and sale of the Notes, either before or after the date hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to either the Partnership or any of the Guarantors, either in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions, and the Partnership and the Guarantors hereby confirm their understanding and agreement to that effect. The Partnership, the Guarantors and the Underwriters agree that they are each responsible for making their own independent judgments with respect to any such transactions and that any opinions or views expressed by the Underwriters to the Partnership or the Guarantors regarding such transactions, including, but not limited to, any opinions or views with respect to the price or market for the Notes, do not constitute advice or recommendations to the Partnership or the Guarantors. The Partnership and the Guarantors hereby waive and release, to the fullest permitted by law, any claims that either the Partnership or the Guarantors may have against the Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to the Partnership or the Guarantors in connection with the transactions contemplated by this Agreement or any matters leading up to such transactions.
14. Miscellaneous.
| (a) | Notices given pursuant to any provision of this Agreement shall be addressed as follows: (i) if to the Partnership or the Guarantors, to: 1212 New York Avenue, NW, Suite 900, Washington D.C. 20005, Attention: Christopher Eldredge, with a copy to: Hogan Lovells US LLP, 555 13th Street NW, Washington, DC 20004, Attention: Stuart A. Barr, Esq., and (ii) if to the Underwriters, to: SunTrust Robinson Humphrey, Inc., 3333 Peachtree Road, 10th Floor, Atlanta, GA 30326, Facsimile: 404-926-5248, Attention: High Yield Syndicate, with a copy to: Davis Polk & Wardwell LLP, 450 Lexington Avenue, New York, New York, Attention: John G. Crowley, Esq. (or in any case to such other address as the person to be notified may have requested in writing). |
24
| (b) | This Agreement has been and is made solely for the benefit of and shall be binding upon the Partnership and the Guarantors, the Underwriters and, to the extent provided in Section 8 hereof, the controlling persons, officers, directors, partners, employees, representatives and agents referred to in Section 8, and their respective heirs, executors, administrators, successors and assigns, all as and to the extent provided in this Agreement, and no other person shall acquire or have any right under or by virtue of this Agreement. The term “successors and assigns” shall not include a purchaser of any of the Notes from the Underwriters merely because of such purchase. |
| (c) | THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. |
| (d) | EACH OF THE PARTNERSHIP AND EACH GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY (I) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY; AND (II) WAIVES (A) ITS RIGHT TO A TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE UNDERWRITERS AND FOR ANY COUNTERCLAIM RELATED TO ANY OF THE FOREGOING AND (B) ANY OBLIGATION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. |
| (e) | This Agreement may be signed in various counterparts, which together shall constitute one and the same instrument. |
| (f) | The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. |
| (g) | If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void or unenforceable. |
| (h) | This Agreement may be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may be given, provided that the same are in writing and signed by all of the signatories hereto. |
25
| (j) | Any action by the Underwriters hereunder may be taken by the Representative on behalf of the Underwriters, and any such action taken by the Representative shall be binding upon each of the Underwriters. |
26
Please confirm that the foregoing correctly sets forth the agreement between the Partnership, the Guarantors and the Underwriters.
| Very truly yours, | ||
| DUPONT FABROS TECHNOLOGY, INC., a Maryland corporation | ||
| By: | /s/ Richard A. Montfort, Jr. | |
| Name: | Richard A. Montfort, Jr. | |
| Title: | Executive Vice President, General Counsel and Secretary | |
| DUPONT FABROS TECHNOLOGY, L.P., a Maryland limited partnership | ||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its sole General Partner | |||
| By: | /s/ Richard A. Montfort, Jr. | |||
| Name: | Richard A. Montfort, Jr. | |||
| Title: | Executive Vice President, General Counsel and Secretary | |||
| GRIZZLY EQUITY LLC, a Delaware limited liability company, its Managing Member | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort, Jr. | |||||
| Name: | Richard A. Montfort, Jr. | |||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||
| GRIZZLY VENTURES LLC, a Delaware limited liability company | ||||||||
| By: | Grizzly Equity LLC, a Delaware limited liability company, its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort, Jr. | |||||||
| Name: | Richard A. Montfort, Jr. | |||||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||||
| LEMUR PROPERTIES LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort, Jr. | |||||
| Name: | Richard A. Montfort, Jr. | |||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||
| PORPOISE VENTURES LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort, Jr. | |||||
| Name: | Richard A. Montfort, Jr. | |||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||
| RHINO EQUITY LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort, Jr. | |||||
| Name: | Richard A. Montfort, Jr. | |||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||
| TARANTULA INTERESTS LLC, a Delaware limited liability company its Managing Member | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort, Jr. | |||||
| Name: | Richard A. Montfort, Jr. | |||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||
| TARANTULA VENTURES LLC, a Delaware limited liability company | ||||||||
| By: | Tarantula Interests LLC, a Delaware limited liability company its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort, Jr. | |||||||
| Name: | Richard A. Montfort, Jr. | |||||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||||
| WHALE HOLDINGS LLC, a Delaware limited liability company, its Managing Member | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort, Jr. | |||||
| Name: | Richard A. Montfort, Jr. | |||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||
| WHALE INTERESTS LLC, a Delaware limited liability company, its Managing Member | ||||||||
| By: | Whale Holdings LLC, a Delaware limited liability company, its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort, Jr. | |||||||
| Name: | Richard A. Montfort, Jr. | |||||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||||
| WHALE VENTURES LLC, a Delaware limited liability company | ||||||||||
| By: | Whale Interests LLC, a Delaware limited liability company, its Managing Member | |||||||||
| By: | Whale Holdings LLC, a Delaware limited liability company, its Managing Member | |||||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||||
| By: | /s/ Richard A. Montfort, Jr. | |||||||||
| Name: | Richard A. Montfort, Jr. | |||||||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||||||
| YAK MANAGEMENT LLC, a Delaware limited liability company, its Managing Member | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort, Jr. | |||||
| Name: | Richard A. Montfort, Jr. | |||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||
| YAK INTERESTS LLC, a Delaware limited liability company, its Managing Member | ||||||||
| By: | Yak Management LLC, a Delaware limited liability company, its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort, Jr. | |||||||
| Name: | Richard A. Montfort, Jr. | |||||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||||
| XERES MANAGEMENT LLC, a Delaware limited liability company, its Managing Member | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort, Jr. | |||||
| Name: | Richard A. Montfort, Jr. | |||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||
| XERES INTERESTS LLC, a Delaware limited liability company, its Managing Member | ||||||||
| By: | Xeres Management LLC, a Delaware limited liability company, its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort, Jr. | |||||||
| Name: | Richard A. Montfort, Jr. | |||||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||||
| XERES VENTURES LLC, a Delaware limited liability company, its Managing Member | ||||||||
| By: | Xeres Management LLC, a Delaware limited liability company, its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort, Jr. | |||||||
| Name: | Richard A. Montfort, Jr. | |||||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||||
| FOX PROPERTIES LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort, Jr. | |||||
| Name: | Richard A. Montfort, Jr. | |||||
| Title: | Executive Vice President, General Counsel and Secretary | |||||
| Accepted and Agreed to:
SUNTRUST ROBINSON HUMPHREY, INC.
For itself and on behalf of the Underwriters listed in Schedule I hereto | ||||
| By: | /s/ William G. Monroe, IV | |||
| Name: | William G. Monroe, IV | |||
| Title: | Director | |||
SCHEDULE I
| Underwriters |
Principal Amount |
|||
| SunTrust Robinson Humphrey, Inc. |
$ | 67,500,000 | ||
| Goldman, Sachs & Co. |
$ | 50,000,000 | ||
| KeyBanc Capital Markets Inc. |
$ | 30,000,000 | ||
| RBC Capital Markets, LLC |
$ | 30,000,000 | ||
| Regions Securities LLC |
$ | 30,000,000 | ||
| Stifel, Nicolaus & Company, Incorporated |
$ | 30,000,000 | ||
| TD Securities (USA) LLC |
$ | 12,500,000 | ||
| Total |
$ | 250,000,000 | ||
SCHEDULE II
FREE WRITING PROSPECTUSES
Pricing Supplement dated June 4, 2015
SCHEDULE III
PRICING SUPPLEMENT
[Attached]
SCHEDULE IV
SUBSIDIARIES
DuPont Fabros Technology, L.P.
Alshain Ventures LLC
Beaver Ventures LLC
Cosmic Ventures LLC
Rhino Equity LLC
Quill Equity LLC
Lemur Properties LLC
Porpoise Ventures LLC
Tarantula Interests LLC
Tarantula Ventures LLC
Fox Properties LLC
Grizzly Equity LLC
Grizzly Ventures LLC
Whale Holdings LLC
Whale Interests LLC
Whale Ventures LLC
Yak Management LLC
Yak Interests LLC
Yak Ventures LLC
Xeres Management LLC
Xeres Interests LLC
Xeres Ventures LLC
DF Holdings I LLC
DF Technical Services, LLC
DF Property Management LLC
Exhibit 4.1
EXECUTION VERSION
DUPONT FABROS TECHNOLOGY, L.P.,
as Issuer
— and —
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of June 9, 2015
Debt Securities
Certain Sections of this Indenture
relating to the Trust Indenture Act of 1939
| Trust Indenture Act Section |
Indenture Section | |||
| §310(a)(1) |
607 | |||
| (a)(2) |
607 | |||
| (a)(5) |
607 | |||
| (b) |
608 | |||
| §311 |
604 | |||
| §312(a) |
701, 702 | (1) | ||
| (b) |
702 | |||
| (c) |
702 | |||
| §313(a) |
703 | |||
| (b) |
703 | |||
| (c) |
703 | |||
| (d) |
703 | |||
| §314(a) |
704 | |||
| (c)(1) |
102 | |||
| (c)(2) |
102 | |||
| (e) |
102 | |||
| §315(a) |
601 | |||
| (b) |
601, 602 | |||
| (c) |
601 | |||
| (d) |
601 | |||
| (e) |
515 | |||
| §316(a) (last sentence) |
101 | |||
| (a)(1)(A) |
502, 512 | |||
| (a)(1)(B) |
513 | |||
| (b) |
508 | |||
| (c) |
104 | |||
| §317(a)(1) |
503 | |||
| (a)(2) |
504 | |||
| (b) |
1003 | |||
| §318(a) |
108 | |||
Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.
i
TABLE OF CONTENTS
| ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 | |||||
| Section 101 |
Definitions. |
1 | ||||
| Section 102 |
Compliance Certificates and Opinions. |
8 | ||||
| Section 103 |
Form of Documents Delivered to Trustee. |
8 | ||||
| Section 104 |
Acts of Holders; Record Dates. |
9 | ||||
| Section 105 |
Notices, etc. to Trustee and Operating Partnership. |
10 | ||||
| Section 106 |
Notice to Holders of Securities; Waiver. |
10 | ||||
| Section 107 |
Language of Notices. |
10 | ||||
| Section 108 |
Conflict with Trust Indenture Act. |
11 | ||||
| Section 109 |
Effect of Headings and Table of Contents. |
11 | ||||
| Section 110 |
Successors and Assigns. |
11 | ||||
| Section 111 |
Separability Clause. |
11 | ||||
| Section 112 |
Benefits of Indenture. |
11 | ||||
| Section 113 |
Governing Law; Waiver of Jury Trial. |
11 | ||||
| Section 114 |
Legal Holidays. |
11 | ||||
| Section 115 |
Counterparts. |
11 | ||||
| Section 116 |
Judgment Currency. |
12 | ||||
| Section 117 |
Extension of Payment Dates. |
12 | ||||
| Section 118 |
Immunity of General Partners, Limited Partners, Stockholders, Directors, Officers, Employees, Incorporators and Agents of the Operating Partnership, the Company and Guarantors. |
12 | ||||
| Section 119 |
USA Patriot Act. |
12 | ||||
| Section 120 |
Force Majeure. |
13 | ||||
| Section 121 |
FATCA. |
13 | ||||
| ARTICLE TWO SECURITIES FORMS |
13 | |||||
| Section 201 |
Forms Generally. |
13 | ||||
| Section 202 |
Form of Trustee’s Certificate of Authentication. |
13 | ||||
| Section 203 |
Securities in Global Form. |
14 | ||||
| ARTICLE THREE THE SECURITIES |
14 | |||||
| Section 301 |
Amount Unlimited; Issuable in Series. |
14 | ||||
| Section 302 |
Currency; Denominations. |
18 | ||||
| Section 303 |
Execution, Authentication, Delivery and Dating. |
18 | ||||
| Section 304 |
Temporary Securities. |
19 | ||||
| Section 305 |
Registration, Transfer and Exchange. |
20 | ||||
| Section 306 |
Mutilated, Destroyed, Lost and Stolen Securities. |
21 | ||||
| Section 307 |
Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved. |
22 | ||||
| Section 308 |
Persons Deemed Owners. |
23 | ||||
| Section 309 |
Cancellation. |
23 | ||||
| Section 310 |
Computation of Interest. |
24 | ||||
| Section 311 |
CUSIP Numbers. |
24 | ||||
| ARTICLE FOUR SATISFACTION AND DISCHARGE OF INDENTURE |
24 | |||||
| Section 401 |
Satisfaction and Discharge. |
24 | ||||
| Section 402 |
Defeasance and Covenant Defeasance. |
25 | ||||
| Section 403 |
Application of Trust Money. |
28 | ||||
ii
| Section 404 |
Reinstatement. |
29 | ||||
| Section 405 |
Qualifying Trustee. |
29 | ||||
| ARTICLE FIVE REMEDIES |
29 | |||||
| Section 501 |
Events of Default. |
29 | ||||
| Section 502 |
Acceleration of Maturity; Rescission and Annulment. |
30 | ||||
| Section 503 |
Collection of Indebtedness and Suits for Enforcement by Trustee. |
31 | ||||
| Section 504 |
Trustee May File Proofs of Claim. |
32 | ||||
| Section 505 |
Trustee May Enforce Claims without Possession of Securities. |
32 | ||||
| Section 506 |
Application of Money Collected. |
33 | ||||
| Section 507 |
Limitations on Suits. |
33 | ||||
| Section 508 |
Unconditional Right of Holders to Receive Principal and any Premium, Interest and Additional Amounts. |
33 | ||||
| Section 509 |
Restoration of Rights and Remedies. |
34 | ||||
| Section 510 |
Rights and Remedies Cumulative. |
34 | ||||
| Section 511 |
Delay or Omission Not Waiver. |
34 | ||||
| Section 512 |
Control by Holders of Securities. |
34 | ||||
| Section 513 |
Waiver of Past Defaults. |
34 | ||||
| Section 514 |
Waiver of Usury, Stay or Extension Laws. |
35 | ||||
| Section 515 |
Undertaking for Costs. |
35 | ||||
| ARTICLE SIX THE TRUSTEE |
35 | |||||
| Section 601 |
Certain Rights of Trustee. |
35 | ||||
| Section 602 |
Notice of Defaults. |
37 | ||||
| Section 603 |
Not Responsible for Recitals or Issuance of Securities. |
37 | ||||
| Section 604 |
May Hold Securities; Transactions with the Operating Partnership or any Guarantor. |
38 | ||||
| Section 605 |
Money Held in Trust. |
38 | ||||
| Section 606 |
Compensation and Reimbursement. |
38 | ||||
| Section 607 |
Corporate Trustee Required; Eligibility. |
39 | ||||
| Section 608 |
Resignation and Removal; Appointment of Successor. |
39 | ||||
| Section 609 |
Acceptance of Appointment by Successor. |
40 | ||||
| Section 610 |
Merger, Conversion, Consolidation or Succession to Business. |
41 | ||||
| Section 611 |
Appointment of Authenticating Agent. |
41 | ||||
| ARTICLE SEVEN HOLDERS LISTS AND REPORTS BY TRUSTEE, OPERATING PARTNERSHIP AND GUARANTORS |
43 | |||||
| Section 701 |
Operating Partnership to Furnish Trustee Names and Addresses of Holders. |
43 | ||||
| Section 702 |
Preservation of Information; Communications to Holders. |
43 | ||||
| Section 703 |
Reports by Trustee. |
43 | ||||
| Section 704 |
Reports by the Operating Partnership. |
43 | ||||
| ARTICLE EIGHT CONSOLIDATION, MERGER, SALES AND SUBSTITUTION |
44 | |||||
| Section 801 |
Operating Partnership May Consolidate, Etc., Only on Certain Terms. |
44 | ||||
| Section 802 |
Guarantor May Consolidate, Etc., Only on Certain Terms. |
44 | ||||
| Section 803 |
Successor Person Substituted for Operating Partnership or Guarantor. |
45 | ||||
| ARTICLE NINE SUPPLEMENTAL INDENTURES |
45 | |||||
| Section 901 |
Supplemental Indentures Without Consent of Holders. |
45 | ||||
| Section 902 |
Supplemental Indentures with Consent of Holders. |
47 | ||||
| Section 903 |
Execution of Supplemental Indentures. |
48 | ||||
| Section 904 |
Effect of Supplemental Indentures. |
48 | ||||
| Section 905 |
Reference in Securities to Supplemental Indentures. |
48 | ||||
iii
| Section 906 |
Conformity with Trust Indenture Act. |
48 | ||||
| ARTICLE TEN COVENANTS |
49 | |||||
| Section 1001 |
Payment of Principal, Premium, Interest and Additional Amounts. |
49 | ||||
| Section 1002 |
Maintenance of Office or Agency. |
49 | ||||
| Section 1003 |
Provisions as to Paying Agent. |
49 | ||||
| Section 1004 |
Additional Amounts. |
50 | ||||
| Section 1005 |
Corporate Existence. |
50 | ||||
| Section 1006 |
Waiver of Certain Covenants. |
51 | ||||
| Section 1007 |
Operating Partnership and Guarantor Statement as to Compliance. |
51 | ||||
| Section 1008 |
Calculation of Original Issue Discount. |
51 | ||||
| ARTICLE ELEVEN REDEMPTION OF SECURITIES |
51 | |||||
| Section 1101 |
Applicability of Article. |
51 | ||||
| Section 1102 |
Election to Redeem; Notice to Trustee. |
51 | ||||
| Section 1103 |
Selection by Trustee of Securities to be Redeemed. |
52 | ||||
| Section 1104 |
Notice of Redemption. |
52 | ||||
| Section 1105 |
Deposit of Redemption Price. |
53 | ||||
| Section 1106 |
Securities Payable on Redemption Date. |
54 | ||||
| Section 1107 |
Securities Redeemed in Part. |
54 | ||||
| ARTICLE TWELVE SINKING FUNDS |
54 | |||||
| Section 1201 |
Applicability of Article. |
54 | ||||
| Section 1202 |
Satisfaction of Sinking Fund Payments with Securities. |
54 | ||||
| Section 1203 |
Redemption of Securities for Sinking Fund. |
55 | ||||
| ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS |
55 | |||||
| Section 1301 |
Applicability of Article. |
55 | ||||
| ARTICLE FOURTEEN SECURITIES IN FOREIGN CURRENCIES |
56 | |||||
| Section 1401 |
Applicability of Article. |
56 | ||||
| Section 1402 |
Monies of Different Currencies to be Segregated. |
56 | ||||
| ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES |
56 | |||||
| Section 1501 |
Purposes for Which Meetings May Be Called. |
56 | ||||
| Section 1502 |
Call, Notice and Place of Meetings. |
56 | ||||
| Section 1503 |
Persons Entitled to Vote at Meetings. |
57 | ||||
| Section 1504 |
Quorum; Action. |
57 | ||||
| Section 1505 |
Determination of Voting Rights; Conduct and Adjournment of Meetings. |
57 | ||||
| Section 1506 |
Counting Votes and Recording Action of Meetings. |
58 | ||||
| ARTICLE SIXTEEN GUARANTEE OF SECURITIES |
58 | |||||
| Section 1601 |
Guarantee. |
58 | ||||
| Section 1602 |
Future Guarantors. |
60 | ||||
| Section 1603 |
Delivery of Guarantee. |
60 | ||||
iv
INDENTURE, dated as of June 9, 2015 (the “Indenture”), between: DuPont Fabros Technology, L.P., a Maryland limited partnership (the “Operating Partnership”), having its principal executive office located at 1212 New York Avenue, NW, Suite 900, Washington, D.C. 20005, as issuer, and U.S. Bank National Association, as trustee, registrar, paying agent and transfer agent (the “Trustee,” “Registrar,” “Paying Agent,” and “Transfer Agent,” respectively).
RECITALS
The Operating Partnership has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its debentures, notes or other evidences of indebtedness (hereinafter called the “Securities”), unlimited as to principal amount, to bear such fixed or floating rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the Operating Partnership in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders (as herein defined) thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture or unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(2) 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;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(4) the words “herein,” “hereof,” “hereto” 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;
(5) the word “or” is always used inclusively (for example, the phrase “A or B” means “A or B or both,” not “either A or B but not both”);
(6) provisions apply to successive events and transactions;
(7) the term “merger” includes a statutory share exchange and the terms “merge” and “merged” have correlative meanings;
(8) the masculine gender includes the feminine and the neuter; and
(9) references to agreements and other instruments include subsequent amendments and supplements thereto.
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Certain terms used principally in certain Articles hereof are defined in those Articles.
“Act,” when used with respect to any Holders, has the meaning specified in Section 104.
“Additional Amounts” means any additional amounts which are required by this Indenture, by the terms of any Security established pursuant to Section 301 or by the terms of any Guarantee, under circumstances specified herein or therein, to be paid by the Operating Partnership or any Guarantor, as applicable, in respect of certain taxes, duties, levies, imposts, assessments or other governmental charges imposed on Holders specified herein or therein.
“Additional Amounts Notice” has the meaning specified in Section 1004.
“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 or cause the direction of 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.
“Agency” with respect to any Securities, means an agent of the Operating Partnership or the office of an agent of the Operating Partnership, as the context requires, in each case maintained or designated in a Place of Payment for such Securities pursuant to Section 1002 or any other agent of the Operating Partnership or office of an agent of the Operating Partnership, as the context requires, in each case maintained or designated for such Securities pursuant to Section 1002 or, to the extent designated or required by Section 1002 in lieu of such agent or agent’s office, the Corporate Trust Office of the Trustee.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 611 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Bankruptcy Law” means Title 11, U.S. Code or any similar federal, state, or foreign law for the relief of debtors.
“Board of Directors” means the board of directors of the Company, on behalf of the Operating Partnership or itself, or any committee of such board duly authorized to act generally or in any particular respect for the Operating Partnership or itself hereunder.
“Board Resolution” means a copy of one or more resolutions or unanimous written consents, certified by the Secretary or an Assistant Secretary of the Company, on behalf of the Operating Partnership, to have been duly adopted by the Board of Directors, on behalf of the Operating Partnership, and to be in full force and effect on the date of such certification, delivered to the Trustee.
“Business Day” means, unless otherwise specified with respect to the Securities of any series pursuant to Section 301, any day other than a Saturday, Sunday or other day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to close; provided that such term shall mean, when used with respect to any payment of principal of, or premium or interest, if any, on, or Additional Amounts with respect to, the Securities of any series to be made at any Place of Payment for such Securities, unless otherwise specified pursuant to Section 301 with respect to such Securities, any day other than a Saturday, Sunday or other day on which banking institutions in such Place of Payment are authorized or obligated by law, regulation or executive order to close.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Common Equity” includes any equity security of any class of the Operating Partnership or the Company, as the context requires, which has no preference in respect of dividends or of amounts payable in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Operating Partnership or the Company, as applicable, and which is not subject to redemption by the Operating Partnership or the Company, as applicable.
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“Company” means DuPont Fabros Technology, Inc., a corporation formed under the laws of the State of Maryland, or any successor thereto.
“Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country or the confederation which issued such Foreign Currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community or (ii) any currency unit or composite currency for the purposes for which it was established.
“Corporate Trust Office” means either the principal corporate trust office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of this Indenture is located at 60 Livingston Avenue, St Paul, Minnesota 55107-2292, or such other address as the Trustee may designate from time to time by notice to the Holders and the Operating Partnership.
“Corporation” includes corporations, partnerships, associations, limited liability companies and other companies, and business trusts. The term “corporation” means a corporation and does not include partnerships, associations, limited liability companies or other companies or business trusts.
“Currency,” with respect to any payment, deposit or other transfer in respect of the principal of or any premium or interest on or any Additional Amounts with respect to any Security, means Dollars or the Foreign Currency, as the case may be, in which such payment, deposit or other transfer is required to be made by or pursuant to the terms hereof or such Security and, with respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof or such Security, means Dollars.
“CUSIP number” means the alphanumeric designation assigned to a Security by Standard & Poor’s, CUSIP Service Bureau.
“Defaulted Interest” has the meaning specified in Section 307.
“Depository” means, with respect to any Security issuable or issued in the form of one or more global Securities, the Person designated as depository by the Operating Partnership in or pursuant to this Indenture, and, unless otherwise provided with respect to any Security, any successor to such Person. If at any time there is more than one such Person, “Depository” shall mean, with respect to any Securities, the depository which has been appointed with respect to such Securities.
“Dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public or private debts in the United States of America.
“Equivalent Terms” has the meaning specified in Section 1102.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor thereto, in each case as amended from time to time.
“Foreign Currency” means any currency, currency unit or composite currency issued by the government of one or more countries other than the United States of America or by any recognized confederation or association of such government.
“GAAP” and “generally accepted accounting principles” means United States generally accepted accounting principles as in effect on the date hereof, including without limitation, as set forth in the Financial Accounting Standards Board’s “Accounting Standards Codification.”
“Government Obligations” means securities which are (i) direct obligations of the United States of America or the other government or governments in the confederation of such government which issued the Foreign Currency in which the principal of or any premium or interest on the relevant Security or any Additional Amounts in respect thereof shall be
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payable, in each case where the payment or payments thereunder are supported by the full faith and credit of such government or governments or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such other government or governments, in each case where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government or governments, and which, in the case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of or other amount with respect to any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of or other amount with respect to the Government Obligation evidenced by such depository receipt.
“Guarantee” has the meaning set forth in Article Sixteen hereof.
“Guarantors” means any Person that is liable under a Guarantee under Article Sixteen hereof.
“Holder,” in the case of any Registered Security, means the Person in whose name such Security is registered in the Security Register.
“Indebtedness,” when used with respect to any Person, and without duplication, unless otherwise specified with respect to the Securities of any series pursuant to Section 301, means any indebtedness (whether being principal, premium or interest) for or in respect of (i) any notes, bonds, debenture stock, loan stock or other securities or (ii) any borrowed money.
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and, with respect to any Security, by the terms and provisions of such Security established pursuant to Section 301 (as such terms and provisions may be amended pursuant to the applicable provisions hereof), provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of those particular series of Securities for which such Person is Trustee established pursuant to Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted.
“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be more or less than the principal face amount thereof at original issuance.
“Interest,” with respect to any Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date,” with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Judgment Currency” has the meaning specified in Section 116.
“Maturity,” with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as provided in or pursuant to this Indenture or such Security, whether at the Stated Maturity, upon acceleration, upon redemption at the option of the Operating Partnership, upon repurchase or repayment at the option of the Holder or otherwise, and includes a Redemption Date for such Security and a date fixed for the repurchase or repayment of such Security at the option of the Holder.
“New York Banking Day” has the meaning specified in Section 116.
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“Office,” with respect to any Securities, means an office of the Operating Partnership maintained or designated in a Place of Payment for such Securities pursuant to Section 1002 or any other office of the Operating Partnership maintained or designated for such Securities pursuant to Section 1002 or, to the extent designated or required by Section 1002 in lieu of such office, the Corporate Trust Office of the Trustee.
“Officers’ Certificate” means a certificate signed by the Chairman, the Chief Executive Officer, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Operating Partnership or of the Company on behalf of the Operating Partnership or a Guarantor, as applicable, that, if applicable, complies with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.
“Operating Partnership” means the Person named as the “Operating Partnership” 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 “Operating Partnership” shall mean such successor Person.
“Operating Partnership Request” and “Operating Partnership Order” mean, respectively, a written request or order, as the case may be, signed in the name of the Company, on behalf of the Operating Partnership, by the Chairman, the Chief Executive Officer, the President or a Vice President, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, on behalf of the Operating Partnership, and delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Operating Partnership, the Company or a Guarantor, as the case may be, or other counsel who shall be reasonably acceptable to the Trustee.
“Original Issue Discount Security” means a Security, other than an Indexed Security, issued pursuant to this Indenture which provides for an amount less than the principal amount thereof to be due and payable upon acceleration pursuant to Section 502.
“Outstanding,” when used with respect to any Securities, means, as of the date of determination, all such Securities theretofore authenticated and delivered under this Indenture, except:
(a) any such Security theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) any such Security for whose payment at the Maturity thereof money in the necessary amount (or, to the extent that such Security is payable at such Maturity in shares of Common Equity or other securities or property, Common Equity or such other securities or property in the necessary amount, together with, if applicable, cash in lieu of fractional shares or securities) has been theretofore deposited pursuant hereto (other than pursuant to Section 402) with the Trustee or any Paying Agent (other than the Operating Partnership, the Company or any Affiliate of the Operating Partnership or the Company) in trust or set aside and segregated in trust by the Operating Partnership, the Company or any Affiliate of the Operating Partnership or the Company (if it shall act as Paying Agent) for the Holders of such Securities, provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(c) any such Security with respect to which the Operating Partnership has effected defeasance or Covenant Defeasance pursuant to Section 402, except to the extent provided in Section 402;
(d) any such Security which has been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, unless there shall have been presented to the Trustee proof satisfactory to it that such Security is held by a bona fide purchaser in whose hands such Security is a valid obligation of the Operating Partnership; and
(e) any such Security converted or exchanged as contemplated by this Indenture into Common Equity or other securities or property, if the terms of such Security provide for such conversion or exchange pursuant to Section 301;
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provided, however, that in determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination and that shall be deemed to be Outstanding for such purposes shall be equal to the amount of the principal thereof that pursuant to the terms of such Original Issue Discount Security would be due and payable upon acceleration thereof pursuant to Section 502 at the time of such determination, and (ii) the principal amount of any Indexed Security that may be counted in making such determination and that shall be deemed Outstanding for such purpose shall be equal to the principal amount of such Indexed Security at original issuance, unless otherwise provided in or pursuant to this Indenture, and (iii) the principal amount of a Security denominated in a Foreign Currency that may be counted in making such determination and that shall be deemed Outstanding for such purposes shall be the Dollar equivalent, determined on the date of original issuance of such Security, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent on the date of original issuance of such Security of the amount determined as provided in (i) above) of such Security, and (iv) Securities owned by the Operating Partnership, the Company or any other obligor upon the Securities or any Affiliate of the Operating Partnership, the Company or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making any such determination or relying upon any such request, demand, authorization, direction, notice, consent or waiver, the Trustee shall be entitled to conclusively rely on any such request, demand, authorization, direction, notice, consent or waiver, but only to the extent the Responsible Officer of the Trustee making such determination does not have actual knowledge that such Securities are not so owned. Securities so owned which shall have been pledged in good faith may be regarded as Outstanding if the pledgee establishes in writing to the satisfaction of the Trustee (A) the pledgee’s right so to act with respect to such Securities and (B) that the pledgee is not the Operating Partnership, the Company or any other obligor upon the Securities or an Affiliate of the Operating Partnership, the Company or such other obligor.
“Paying Agent” means any Person authorized by the Operating Partnership to pay the principal of, or any premium or interest on, or any Additional Amounts with respect to, any Security on behalf of the Operating Partnership.
“Person” and “person” mean any individual, Corporation, joint venture, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” with respect to any Security, means the place or places where the principal of, or any premium or interest on, or any Additional Amounts with respect to such Security are payable as provided in or pursuant to this Indenture or such Security.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same indebtedness as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a lost, destroyed, mutilated or stolen Security.
“Redemption Date,” with respect to any Security or portion thereof to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture or such Security.
“Redemption Price,” with respect to any Security or portion thereof to be redeemed, means the price at which it is to be redeemed as determined by or pursuant to this Indenture or such Security.
“Registered Security” means any Security established pursuant to Section 201 which is registered in the Security Register.
“Regular Record Date” for the interest payable on any Registered Security on any Interest Payment Date therefor means the date, if any, specified in or pursuant to this Indenture or such Security as the regular record date for the payment of such interest.
“Required Currency” has the meaning specified in Section 116.
“Responsible Officer” means any officer of the Trustee in its corporate trust department who is responsible for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer or employee of the Trustee to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject.
6
“Securities Act” means the Securities Act of 1933, as amended, or any successor thereto, in each case as amended from time to time.
“Security” or “Securities” means any note or notes, bond or bonds, debenture or debentures, or any other evidences of indebtedness, as the case may be, authenticated and delivered under this Indenture; provided, however, that, if at any time there is more than one Person acting as Trustee under this Indenture, “Securities,” with respect to any such Person, shall mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.
“Security Interest” means any mortgage, pledge, lien, hypothecation, security interest or other charge.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“Significant Subsidiary” means any Subsidiary or group of Subsidiaries that meets either of the following conditions: (1) the Operating Partnership and its other Subsidiaries’ investments in and advances to the Subsidiary exceed 10% of the Operating Partnership’s and its Subsidiaries’ total assets consolidated (determined in accordance with GAAP) as of the end of the most recent fiscal quarter for which an annual or quarterly report has been furnished to holders of the notes or filed with the Commission; or (2) the Operating Partnership’s and its other Subsidiaries’ proportionate share of the total assets (after intercompany eliminations) of the Subsidiary exceeds 10% of the Operating Partnership’s and its Subsidiaries’ total assets consolidated (determined in accordance with GAAP) as of the end of the most recent fiscal quarter for which an annual or quarterly report has been furnished to Holders or filed with the Commission.
“Special Record Date” for the payment of any Defaulted Interest on any Registered Security means a date fixed therefor by the Trustee pursuant to Section 307.
“Stated Maturity,” with respect to any Security or any installment of principal thereof or interest thereon or any Additional Amounts with respect thereto, means the date established by or pursuant to this Indenture or such Security as the fixed date on which the principal of such Security or such installment of principal or interest is, or such Additional Amounts are, due and payable.
“Subsidiary” means, with respect to the Operating Partnership or the Company, any Person (excluding an individual), a majority of the outstanding voting stock, partnership interests, membership interests or other equity interest, as the case may be, of which is owned or controlled, directly or indirectly, by the Operating Partnership or the Company, as the case may be, or by one or more other Subsidiaries of the Operating Partnership or the Company, as the case may be. For the purposes of this definition, “voting stock” means stock having voting power for the election of directors, trustees or managers, as the case may be, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed; provided, however, that in the event that the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means 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 with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person, “Trustee” shall mean each such Person and as used with respect to the Securities of any series shall mean the Trustee with respect to the Securities of such series.
“United States,” means the United States of America (including the states thereof and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction; and the term “United States of America” means the United States of America.
7
“Vice President,” when used with respect to the Operating Partnership, the Company or the Trustee, as applicable, 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, any class or series of capital stock of, or other equity interests in, such Person the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of, or to appoint or to approve the appointment of, the directors, trustees or managing members of, or other persons holding similar positions with, such Person.
Section 102 Compliance Certificates and Opinions.
Except as otherwise expressly provided in or pursuant to this Indenture, upon any application or request by the Operating Partnership or any Guarantor, as applicable, to the Trustee to take any action under any provision of this Indenture, the Operating Partnership or such Guarantor, as the case may be, shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents or any of them is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. Each certificate or opinion with respect to compliance with a condition or covenant provided for in the Indenture (other than certificates delivered pursuant to Section 1007) must include:
(1) a statement that each person signing the certificate or opinion has read the covenant or condition and the related definitions;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statement or opinion contained in the certificate or opinion is based;
(3) a statement that, in the opinion of each such person, that person has made such examination or investigation as is necessary to enable the person to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each such person, such condition or covenant has been complied with.
Section 103 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 Operating Partnership or any Guarantor may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the exercise of reasonable care should know, that the Opinion of Counsel with respect to the matters upon which his certificate or opinion is based is erroneous. Any such 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 Operating Partnership or any Guarantor, a governmental official or officers or any other Person or Persons, stating that the information with respect to such factual matters is in the possession of the Operating Partnership or any Guarantor, as applicable, unless counsel rendering the Opinion of Counsel knows, or in the exercise of reasonable care should know, that the certificate, opinion or representations with respect to such matters are erroneous.
8
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 or any Security, they may, but need not, be consolidated and form one instrument.
Section 104 Acts of Holders; Record Dates.
(1) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by or pursuant to this Indenture to be made, given or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing or the record of any action taken by Holders at a meeting pursuant to Article Fifteen. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Operating Partnership or any Guarantor, as applicable. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and (subject to Section 315 of the Trust Indenture Act) conclusive in favor of the Trustee, the Operating Partnership or any Guarantor, as applicable, and any agent of the Trustee, the Operating Partnership or any Guarantor, as applicable, if made in the manner provided in this Section. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1506.
Without limiting the generality of this Section 104, unless otherwise provided in or pursuant to this Indenture, a Holder, including a Depository that is a Holder of a global Security, may make, give or take, by a proxy or proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other Act provided in or pursuant to this Indenture or the Securities to be made, given or taken by Holders, and a Depository that is a Holder of a global Security may provide its proxy or proxies to the beneficial owners of interests in any such global Security through such Depository’s standing instructions and customary practices.
(2) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable manner which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
(3) The ownership, principal amount and serial numbers of Registered Securities held by any Person, and the date of the commencement and the date of the termination of holding the same, shall be proved by the Security Register.
(4) If the Operating Partnership or any Guarantor shall solicit from the Holders of any Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Operating Partnership may at its option (but is not obligated to), by Board Resolution, fix in advance a record date for the determination of Holders of Registered Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of Registered Securities of record at the close of business on such record date shall be deemed to be Holders for the purpose of determining whether Holders of the requisite proportion of Outstanding Securities have authorized, agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders of Registered Securities shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than six months after the record date.
(5) Any request, demand, authorization, direction, notice, consent, waiver or other Act by the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done or suffered to be done by the Trustee, any Security Registrar, any Paying Agent, the Operating Partnership or any Guarantor in reliance thereon, whether or not notation of such Act is made upon such Security.
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Section 105 Notices, etc. to Trustee and Operating Partnership.
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,
(1) the Trustee by any Holder or by the Operating Partnership or any Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing (which may be by electronic (pdf) or facsimile transmission) to or with the Trustee at its Corporate Trust Office at the location specified in Section 101; or
(2) the Operating Partnership 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 Operating Partnership addressed to the attention of the Secretary of the Company at the address of the Operating Partnership’s principal office specified in writing to the Trustee by the Operating Partnership and, until further notice, at DuPont Fabros Technology, L.P., 1212 New York Avenue, NW, Suite 900, Washington, D.C. 20005, fax number: (202) 728-0220, Attention: General Counsel.
In addition to the foregoing, the Trustee and the Operating Partnership agree to accept and act upon notices, instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. If the party elects to give the Trustee or the Operating Partnership e-mail or facsimile notices, instructions or directions (or notices, instructions or directions by a similar electronic method) and any of the Trustee or the Operating Partnership acts upon such notices, instructions or directions, the Trustee’s or the Operating Partnership’s understanding, as applicable, of such notices, instructions or directions shall be deemed controlling. Neither the Trustee nor the Operating Partnership shall be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s or the Operating Partnership’s reliance, as applicable, upon and compliance with such notices, instructions or directions notwithstanding such notices, instructions or directions conflict or are inconsistent with a subsequent written notice, instruction or direction. The party providing electronic notices, instructions or directions agrees to assume all risks arising out of the use of such electronic methods to submit notices, instructions and directions to the Trustee or the Operating Partnership, including, without limitation, the risk of the Trustee or the Operating Partnership acting on unauthorized notices, instructions or directions, and the risk or interception and misuse by third parties.
Section 106 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to this Indenture, where this Indenture provides for notice to Holders of Securities of any event, such notice shall be sufficiently given if in writing and mailed, first-class postage prepaid, or if delivered electronically pursuant to the applicable procedures of the Depository, to each Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders 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 given as provided herein. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given or provided. In the case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification as shall be made with the approval of the Trustee in its sole discretion shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 107 Language of Notices.
Any request, demand, authorization, direction, notice, consent, waiver or other action required or permitted under this Indenture shall be in the English language.
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Section 108 Conflict with Trust Indenture Act.
If any provision of this Indenture limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
Section 109 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 110 Successors and Assigns.
All covenants and agreements in this Indenture by the Operating Partnership or any Guarantor shall bind its successors and assigns, whether so expressed or not.
Section 111 Separability Clause.
In case any provision in this Indenture or any Security shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not, to the fullest extent permitted by law, in any way be affected or impaired thereby.
Section 112 Benefits of Indenture.
Nothing in this Indenture or any Security, express or implied, shall give to any Person, other than the parties hereto, any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders of Securities, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 113 Governing Law; Waiver of Jury Trial.
This Indenture, the Securities and any Guarantees shall be governed by, and construed in accordance with, the laws of the State of New York without regard to conflicts of law principles of such State other than New York General Obligations Law Section 5-1401. EACH OF THE OPERATING PARTNERSHIP, ANY GUARANTOR AND THE TRUSTEE AND EACH HOLDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL ACTION, SUIT OR PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS INDENTURE, THE SECURITIES, ANY GUARANTEES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 114 Legal Holidays.
Unless otherwise specified in or pursuant to this Indenture or any Securities, in any case where any Interest Payment Date, Stated Maturity or Maturity of, or any other day on which a payment is due with respect to, any Security shall be a day which is not a Business Day, then payment need not be made on such day, but such payment may be made on the next succeeding day that is a relevant Business Day with the same force and effect as if made on the Interest Payment Date, at the Stated Maturity or Maturity or on any such other payment date, as the case may be, and no interest shall accrue or be payable on the payment so deferred on such succeeding Business Day for the period from and after such Interest Payment Date, Stated Maturity, Maturity or other payment date, as the case may be, to such succeeding Business Day.
Section 115 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 exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
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Section 116 Judgment Currency.
Each of the Operating Partnership and any Guarantor agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of, or premium or interest, if any, or Additional Amounts on the Securities of any series (the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the date on which a final unappealable judgment is given and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with clause (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to be closed. The provisions of this Section 116 shall not be applicable with respect to any payment due on a Security which is payable in Dollars.
Section 117 Extension of Payment Dates.
In the event that (i) the terms of any Security established in or pursuant to this Indenture permit the Operating Partnership or any Holder thereof to extend the date on which any payment of principal of, or premium, if any, or interest, if any, on, or Additional Amounts, if any, with respect to such Security is due and payable and (ii) the due date for any such payment shall have been so extended, then all references herein to the Stated Maturity of such payment (and all references of like import) shall be deemed to refer to the date as so extended.
Section 118 Immunity of General Partners, Limited Partners, Stockholders, Directors, Officers, Employees, Incorporators and Agents of the Operating Partnership, the Company and Guarantors.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any past, present or future general partner, limited partner, member, employee, incorporator, controlling person, stockholder, officer, director or agent, as such, of the Operating Partnership, the Company, any Guarantor or of any of the Operating Partnership’s, the Company’s or any Guarantor’s predecessors or successors, either directly or through the Operating Partnership, the Company or any Guarantor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders and as part of the consideration for the issue of the Securities.
Section 119 USA Patriot Act.
The parties hereto acknowledge that, in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. Each of the Operating Partnership and any Guarantor agrees that it will provide the Trustee with such information as it may reasonably request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act, including documentation to verify its formation and existence as a legal entity, financial statements, licenses, and identification and authorization documents from individuals claiming authority to represent the entity or other relevant documentation.
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Section 120 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services.
Section 121 FATCA.
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (“Applicable Law”) that a foreign financial institution, or issuer, trustee, paying agent, holder or other institution is or has agreed to be subject to related to this Indenture, the Operating Partnership agrees (i) to use commercially reasonable efforts to provide to the Trustee sufficient information about Holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) that is reasonably requested by the Trustee so the Trustee can determine whether it has tax related obligations under Applicable Law, (ii) that the Trustee shall be entitled to make any withholding or deduction from payments under this Indenture to the extent necessary to comply with Applicable Law for which the Trustee shall not have any liability, and (iii) to hold harmless the Trustee for any losses it may suffer due to the actions it takes to comply with such Applicable Law, in case of each of clauses (ii) and (iii), other than any liability or losses as may be attributable to the Trustee’s willful misconduct or negligence. The terms of this paragraph shall survive the satisfaction and discharge of this Indenture.
ARTICLE TWO
SECURITIES FORMS
Section 201 Forms Generally.
Each Registered Security and temporary or permanent global Security issued pursuant to this Indenture shall be in the form established by or pursuant to a Board Resolution and set forth in an Officers’ Certificate of the Operating Partnership, or established in one or more indentures supplemental hereto, shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by or pursuant to this Indenture or any indenture supplemental hereto and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officer of the Company executing such Security as evidenced by the execution of such Security.
Definitive Securities shall be printed, lithographed or engraved or produced by any combination of these methods or in any other manner, all as determined by the officer of the Company executing such Securities, as evidenced by the execution of such Securities.
Section 202 Form of Trustee’s Certificate of Authentication.
Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| U.S. Bank National Association, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
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Section 203 Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture or any Securities, the Securities shall not be issuable in global form. If Securities of a series shall be issuable in temporary or permanent global form, any such Security may provide that it or any principal amount of such Securities shall represent the aggregate amount of all Outstanding Securities of such series (or such lesser principal amount as is permitted by the terms thereof) from time to time endorsed thereon or reflected on the books and records of the Trustee and may also provide that the aggregate principal amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges. Any endorsement of any Security in global form to reflect the principal amount, or any increase or decrease in the principal amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by such Person or Persons as shall be specified therein or pursuant to Section 301 with respect to such Security or in the Operating Partnership Order to be delivered pursuant to Section 303 or 304 with respect thereto. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Security in global form in the manner and upon written instructions given by the Person or Persons specified therein or pursuant to Section 301 with respect to such Security or in the applicable Operating Partnership Order. If an Operating Partnership Order pursuant to Section 303 (with respect to Outstanding Securities) or 304 has been, or simultaneously is, delivered, any instructions by the Operating Partnership with respect to a Security in global form shall be in writing but need not be accompanied by or contained in an Officers’ Certificate of the Operating Partnership and need not be accompanied by an Opinion of Counsel other than those which may be required pursuant to Section 303 or 304 or otherwise pursuant to this Indenture. Notwithstanding the foregoing provisions of this paragraph, in the event a global Security is exchangeable for definitive Securities as provided in Section 305, then, unless otherwise provided in or pursuant to this Indenture with respect to the Securities of such series, the Trustee shall deliver and redeliver such global Security to the extent necessary to effect such exchanges, shall endorse such global Security to reflect any decrease in the principal amount thereto resulting from such exchanges and shall take such other actions, all as contemplated by Section 305.
Notwithstanding the provisions of Section 307, payment of principal of, any premium and interest on, and any Additional Amounts in respect of any Security in temporary or permanent global form shall be made to the Person in whose name such Security is registered.
Notwithstanding anything to the contrary, the Operating Partnership, any Guarantor, the Trustee and any agent of the Operating Partnership, any Guarantor or the Trustee shall treat as the Holder of the principal amount of Outstanding Securities represented by a global Security in registered form, the Person in whose name such Security is registered in the Security Register.
ARTICLE THREE
THE SECURITIES
Section 301 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more series.
With respect to any Securities to be authenticated and delivered hereunder, there shall be established in or pursuant to one or more Board Resolutions and set forth in an Officers’ Certificate of the Operating Partnership, or established in one or more indentures supplemental hereto, prior to the issuance of any Securities of a series,
(1) the title of the Securities of such series (which shall distinguish the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of such series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of such series pursuant to Section 304, 305, 306, 905 or 1107, upon repayment in part of any Security of such series pursuant to Article Thirteen or upon surrender in part of any Security for conversion or exchange into Common Equity or other securities or property pursuant to its terms); provided, however, that the authorized aggregate principal amount of such series may from time to time be increased above such amount by a Board Resolution to such effect;
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(3) if such Securities are to be issuable as Registered Securities, as bearer securities or alternatively as bearer securities and Registered Securities, and whether the bearer securities are to be issuable with coupons, without coupons or both, and any restrictions applicable to the offer, sale or delivery of the bearer securities and the terms, if any, upon which bearer securities may be exchanged for Registered Securities and vice versa and, with respect to bearer securities, any other provisions related to bearer securities not otherwise provided for herein;
(4) if any of such Securities are to be issuable in global form, when any of such Securities are to be issuable in global form and (i) whether such Securities are to be issued in temporary or permanent global form or both, (ii) whether beneficial owners of interests in any such global Security may exchange such interests for Securities of the same series and of like tenor and of any authorized form and denomination, and the circumstances under which any such exchanges may occur, if other than in the manner specified in Section 305, (iii) the name of the Depository with respect to any such global Security and (iv) if applicable and in addition to the Persons specified in Section 305, the Person or Persons who shall be entitled to make any endorsements on any such global Security and to give the instructions and take the other actions with respect to such global Security contemplated by the first paragraph of Section 203;
(5) the date or dates, or the method or methods, if any, by which such date or dates shall be determined, on which the principal and premium, if any, of any Securities of the series is payable or the method used to determine or extend those dates;
(6) the rate or rates at which such Securities shall bear interest, if any, or the method or methods, if any, by which such rate or rates are to be determined, the date or dates, if any, from which such interest shall accrue or the method or methods, if any, by which such date or dates are to be determined, the Interest Payment Dates, if any, on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on Registered Securities on any Interest Payment Date, the notice, if any, to Holders regarding the determination of interest on a floating rate Security and the manner of giving such notice, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;
(7) if in addition to or other than the Corporate Trust Office, the place or places where the principal of, any premium and interest on or any Additional Amounts with respect to such Securities shall be payable, any of such Securities that are Registered Securities may be surrendered for registration of transfer or exchange, any of such Securities may be surrendered for conversion or exchange and notices or demands to or upon the Operating Partnership in respect of such Securities and this Indenture may be made and the manner in which any payment may be made;
(8) whether any of such Securities are to be redeemable at the option of the Operating Partnership and, if so, the date or dates on which, the period or periods within which, the price or prices at which, the currency or currency units in which, and the other terms and conditions upon which such Securities may be redeemed, in whole or in part, at the option of the Operating Partnership, and, if other than by a Board Resolution, the manner in which any election by the Operating Partnership to redeem the Securities shall be evidenced;
(9) if the Operating Partnership is obligated to redeem or purchase any of such Securities pursuant to any sinking fund or analogous provisions or at the option of any Holder thereof and, if so, the date or dates on which, the period or periods within which, the price or prices at which, the currency or currency units in which, and the other terms and conditions upon which such Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation, and any provisions for the remarketing of such Securities so redeemed or purchased;
(10) the denominations in which any of such Securities that are Registered Securities shall be issuable if other than minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof;
(11) whether such Securities will be convertible into and/or exchangeable for Common Equity or other securities or property of the Operating Partnership or of any other Person, and if so, the terms and conditions upon which such Securities will be so convertible or exchangeable, and any deletions from or modifications or additions or changes to this Indenture to permit or to facilitate the issuance of such convertible or exchangeable Securities or the administration thereof;
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(12) if other than the entire principal amount thereof, the portion of the principal amount of any of such Securities that shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 502 or the method by which such portion is to be determined;
(13) if other than Dollars, the Foreign Currency in which purchases of such Securities must be made and the Foreign Currency in which payment of the principal of, any premium or interest on or any Additional Amounts with respect to any of such Securities shall be payable and the manner of determining the equivalent thereof in Dollars for any purpose, including for purposes of the definition of “Outstanding” in Section 101;
(14) if the principal of, any premium or interest on or any Additional Amounts with respect to any of such Securities are to be payable, at the election of the Operating Partnership or a Holder thereof or otherwise, in a Currency other than that in which such Securities are stated to be payable, the date or dates on which, the period or periods within which, and the other terms and conditions upon which, such election may be made, and the time and manner of determining the exchange rate between the Currency in which such Securities are stated to be payable and the Currency in which such Securities or any of them are to be paid pursuant to such election, and any deletions from or modifications of or additions to the terms of this Indenture to provide for or to facilitate the issuance of Securities denominated or payable, at the election of the Operating Partnership or a Holder thereof or otherwise, in a Foreign Currency;
(15) if the amount of payments of principal of, any premium or interest on or any Additional Amounts with respect to such Securities may be determined with reference to an index, formula or other method or methods (which index, formula or method or methods may be based, without limitation, on one or more Currencies, commodities, equity indices or other indices), and, if so, the terms and conditions upon which and the manner in which such amounts shall be determined and paid or payable;
(16) any deletions from, modifications of or additions to the Events of Default or covenants of the Operating Partnership or any Guarantor with respect to any of such Securities or any Guarantee (whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein), any additional covenants subject to waiver by the Act of Holders pursuant to Section 1006, and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;
(17) if any one or more of the provisions of Section 401 relating to satisfaction and discharge, Section 402(2) relating to defeasance or Section 402(3) relating to Covenant Defeasance shall not be applicable to such Securities, and any covenants in addition to or other than those specified in Section 402(3) relating to such Securities which shall be subject to Covenant Defeasance, and, if such Securities are subject to repurchase or repayment at the option of the Holders thereof pursuant to Article Thirteen, if the Operating Partnership’s obligation to repurchase or repay such Securities will be subject to satisfaction and discharge pursuant to Section 401 or to defeasance or Covenant Defeasance pursuant to Section 402, and, if the Holders of such Securities have the right to convert or exchange such Securities into Common Equity or other securities or property, if the right to effect such conversion or exchange will be subject to satisfaction and discharge pursuant to Section 401 or to defeasance or Covenant Defeasance pursuant to Section 402, and any deletions from, or modifications or additions to, the provisions of Article Four (including any modification which would permit satisfaction and discharge, defeasance or Covenant Defeasance to be effected with respect to less than all of the outstanding Securities of such series) in respect of such Securities;
(18) if any of such Securities are to be issuable upon the exercise of warrants, and the time, manner and place for such Securities to be authenticated and delivered;
(19) if any of such Securities are issuable in global form and are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and terms of such certificates, documents or conditions;
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(20) the circumstances under which the Operating Partnership or any Guarantor will pay Additional Amounts on such Securities in respect of any tax, assessment or other government charge and whether the Operating Partnership will have the option to redeem such Securities rather than pay such Additional Amounts;
(21) if there is more than one Trustee, the identity of the Trustee that has any obligations, duties and remedies with respect to such Securities and, if not the Trustee, the identity of each Security Registrar, Paying Agent or Authenticating Agent with respect to such Securities;
(22) the Person to whom any interest on any Registered Security of such series shall be payable, if other than the Person in whose name such Registered Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, and the extent to which, or the manner in which, any interest payable on a temporary global Security will be paid if other than in the manner provided in this Indenture;
(23) whether the Securities of the series will be guaranteed by a Guarantor and, if so, the identity of such Guarantor, the extent to which, and the terms and conditions upon which such Securities shall be guaranteed and, if applicable, the terms and conditions upon which such Guarantees may be subordinated to other indebtedness of the respective Guarantors;
(24) whether the Securities of the series will be secured and, if so, specification of the collateral and the extent to which, and the terms and conditions upon which, such Securities shall be secured;
(25) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(26) whether the Securities will not be issued in a transaction registered under the Securities Act and any restriction or condition on the transferability of the Securities of such series;
(27) the exchanges, if any, on which such Securities may be listed;
(28) the price or prices at which the Securities will be sold;
(29) any additional covenants subject to waiver by the act of the holders of debt securities pursuant to the Indenture; and
(30) any other terms of such Securities and any deletions from or modifications or additions to this Indenture in respect of such Securities (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901).
All Securities of any one series shall be substantially identical, except as may be provided by the Operating Partnership in or pursuant to the Board Resolution of the Operating Partnership and set forth in the Officers’ Certificate of the Operating Partnership or in any indenture or indentures supplemental hereto pertaining to such series of Securities. The terms of the Securities of any series may provide, without limitation, that the Securities shall be authenticated and delivered by the Trustee on original issue from time to time upon written order of persons designated in the Board Resolutions of the Operating Partnership or any Guarantor (with respect to its Guarantee), Officers’ Certificate of the Operating Partnership or supplemental indenture, as the case may be, pertaining to such series of Securities and that such persons are authorized to determine, consistent with such Board Resolutions, Officers’ Certificate or supplemental indenture, such terms and conditions of the Securities of such series as are specified in such Board Resolutions, Officers’ Certificate or supplemental indenture.
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All Securities of any one series need not be issued at the same time and, unless otherwise provided by the Operating Partnership as contemplated by this Section 301, a series may be reopened from time to time without notice to or the consent of any Holders for issuances of additional Securities of such series or to establish additional terms of such series of Securities.
If any of the terms of the Securities of any series shall be established by action taken by or pursuant to Board Resolutions of the Operating Partnership, such Board Resolutions shall be delivered to the Trustee at or prior to the delivery of the Officers’ Certificate of the Operating Partnership setting forth the terms of such series.
Section 302 Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the principal of, any premium and interest on and any Additional Amounts with respect to the Securities shall be payable in Dollars. Unless otherwise provided in or pursuant to this Indenture, Registered Securities denominated in Dollars shall be issuable in registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof. Securities not denominated in Dollars shall be issuable in such denominations as are established with respect to such Securities in or pursuant to this Indenture.
Section 303 Execution, Authentication, Delivery and Dating.
Securities and any Guarantee to be endorsed thereon shall be executed on behalf of the Operating Partnership or the related Guarantor, as applicable, by the Chairman, President or one of the Vice Presidents of the Company, on behalf of the Operating Partnership, or such Guarantor, and may (but need not) have the Company’s or the Guarantor’s, as applicable, corporate seal or a facsimile thereof reproduced thereon. The signature of any of these officers on the Securities may be manual or facsimile.
Securities and any related Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Operating Partnership, any Guarantor or the Company on behalf of the Operating Partnership, as applicable, shall, to the fullest extent permitted by law, bind the Operating Partnership or such Guarantor, as applicable, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or the Securities upon which any such Guarantee is endorsed or did not hold such offices at the date of such Securities or any such related Guarantee.
At any time and from time to time after the execution and delivery of this Indenture, the Operating Partnership may deliver Securities executed by the Operating Partnership to the Trustee for authentication and, provided that the Board Resolutions and Officers’ Certificate of the Operating Partnership or supplemental indenture or indentures with respect to such Securities referred to in Section 301 and an Operating Partnership Order for the authentication and delivery of such Securities have been delivered to the Trustee, the Trustee in accordance with the Operating Partnership Order and subject to the provisions hereof and of such Securities shall authenticate and deliver such Securities. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in conclusively relying upon, an Opinion of Counsel to the following effect, which Opinion of Counsel may contain such assumptions, qualifications and limitations as such counsel and Trustee shall deem appropriate:
(a) the form or forms and terms of such Securities have been established in conformity with Sections 201 and 301 of this Indenture; and
(b) all conditions precedent set forth in this Indenture to the authentication and delivery of such Securities have been complied with and that such Securities, when completed by appropriate insertions (if applicable), executed by duly authorized officers of the Company on behalf of the Operating Partnership, delivered by duly authorized officers of the Company on behalf of the Operating Partnership to the Trustee for authentication pursuant to this Indenture, and authenticated and delivered by the Trustee and issued by the Operating Partnership in
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the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Operating Partnership, enforceable against the Operating Partnership in accordance with their terms, and that any Guarantee, when executed by duly authorized signatories of the Guarantor and issued by such Guarantor in the manner and subject to any conditions specified in such Opinion of Counsel and when the Securities upon which such Guarantees have been endorsed have been completed, executed and delivered by duly authorized officers of the Company on behalf of the Operating Partnership and authenticated and delivered by the Trustee, will constitute valid and binding obligations of the Guarantor, except, in each case, as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, receivership, moratorium or other similar laws relating to or affecting creditors’ rights generally or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and subject to such other exceptions as shall be acceptable to the Trustee; provided, that such Opinion of Counsel need express no opinion as to whether a court in the United States would render a money judgment in a currency other than that of the United States.
If all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel at the time of issuance of each Security, but such opinion, with such modifications as counsel shall deem appropriate, shall be delivered at or before the time of issuance of the first Security of such series. After any such first delivery, any separate request by the Operating Partnership that the Trustee authenticate Securities of such series for original issue will be accompanied by (i) a certification by the Operating Partnership that all conditions precedent provided for in this Indenture relating to authentication and delivery of such Securities continue to have been complied with and (ii) an Operating Partnership Order for the authentication and delivery of such Securities.
The Trustee shall not be required to authenticate or to cause an Authenticating Agent to authenticate any Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or will otherwise be in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken.
Each Registered Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such Security a certificate of authentication substantially in the form provided for in Section 202 or 611 executed by or on behalf of the Trustee or by the Authenticating Agent by the manual signature of one of its authorized signatories. Such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
Section 304 Temporary Securities.
Pending the preparation of definitive Securities, the Operating Partnership may execute and deliver to the Trustee and, upon Operating Partnership Order, the Trustee or Authenticating Agent shall authenticate and deliver, in the manner provided in Section 303, temporary Securities in lieu thereof which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form and with such appropriate insertions, omissions, substitutions and other variations as the officers of the Operating Partnership executing such Securities may determine, as conclusively evidenced by their execution of such Securities. Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall be exchanged in accordance with the provisions set forth in this Indenture or the provisions established pursuant to Section 301, if temporary Securities are issued, the Operating Partnership shall cause definitive Securities to be prepared without unreasonable delay. Except as otherwise provided in or pursuant to this Indenture, after the preparation of definitive Securities of the same series and containing terms and provisions that are identical to those of any temporary Securities, such temporary Securities shall be exchangeable for such definitive Securities upon surrender of such temporary Securities at an Office or Agency for such Securities, without charge to any Holder thereof. Except as otherwise provided in or pursuant to this Indenture, upon surrender for cancellation of any one or more temporary Securities, the Operating Partnership shall execute and, upon Operating Partnership Order, the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of authorized denominations of the same series and containing identical terms and provisions. Unless otherwise provided in or pursuant to this Indenture with respect to a temporary global Security, until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
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Section 305 Registration, Transfer and Exchange.
(1) With respect to the Registered Securities of each series, if any, the Operating Partnership shall cause to be kept a register (each such register being herein sometimes referred to as the “Security Register”) at an Office or Agency for such series in which, subject to such reasonable regulations as it may prescribe, the Operating Partnership shall provide for the registration of the Registered Securities of such series and of transfers and exchanges of the Registered Securities of such series. Such Office or Agency shall be the “Security Registrar” for that series of Securities. Unless otherwise specified in or pursuant to this Indenture or the Securities, the initial Security Registrar for each series of Securities shall be as specified in the second to last paragraph of Section 1002. The Operating Partnership shall have the right to remove and replace from time to time the Security Registrar for any series of Securities; provided that no such removal or replacement shall be effective until a successor Security Registrar with respect to such series of Securities shall have been appointed by the Operating Partnership and shall have accepted such appointment. In the event that the Trustee shall not be or shall cease to be Security Registrar with respect to a series of Securities, it shall have the right to examine the Security Register for such series at all reasonable times. There shall be only one Security Register for each series of Securities.
Except as otherwise provided in or pursuant to this Indenture, upon surrender for registration of transfer of any Registered Security of any series at any Office or Agency for such series, the Operating Partnership shall execute, and, upon Operating Partnership Order, the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered Securities of the same series denominated as authorized in or pursuant to this Indenture, of a like aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions.
Except as otherwise provided in or pursuant to this Indenture, at the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series containing identical terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any Office or Agency for such series. Whenever any Registered Securities are so surrendered for exchange, the Operating Partnership shall execute, and, upon Operating Partnership Order, the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or pursuant to this Indenture, the global Securities of any series shall be exchangeable for definitive certificated Securities of such series only if (i) the Depository for such global Securities notifies the Operating Partnership that it is unwilling or unable or no longer qualified to continue as a Depository for such global Securities or at any time the Depository for such global Securities ceases to be a clearing agency registered as such under the Exchange Act, if so required by applicable law or regulation, and no successor Depository for such Securities shall have been appointed by the Operating Partnership within 90 days of such notification or of the Operating Partnership becoming aware of the Depository’s ceasing to be so registered, as the case may be, (ii) the Operating Partnership, in its sole discretion and subject to the Depository’s procedures, determines that the Securities of such series shall no longer be represented by one or more global Securities and executes and delivers to the Trustee an Operating Partnership Order to the effect that such global Securities shall be so exchangeable or (iii) an Event of Default has occurred and is continuing with respect to such Securities and the Depository or the Operating Partnership specifically requests such exchange.
If the beneficial owners of interests in a global Security are entitled to exchange such interests for definitive Securities as the result of an event described in clause (i), (ii) or (iii) of the preceding paragraph, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so exchanged, the Operating Partnership shall deliver to the Trustee definitive Securities in such form and denominations as are required by or pursuant to this Indenture, and of the same series, containing identical terms and in aggregate principal amount equal to the principal amount of such global Security, executed by the Operating Partnership. On or after the earliest date on which such interests may be so exchanged, such global Security shall be surrendered from time to time by the Depository (or its custodian) as shall be specified in the Operating Partnership Order with respect thereto (which the Operating Partnership agrees to deliver), and in accordance with instructions given to the Trustee and the Depository as shall be specified in the Operating Partnership Order with respect thereto to the Trustee, as the Operating Partnership’s agent for such purpose, to be exchanged, in whole or in
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part, for definitive Securities as described above without charge. The Trustee shall authenticate and make available for delivery, in exchange for each portion of such surrendered global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such global Security to be exchanged, which shall be in such denominations and, in the case of Registered Securities, registered in such names, as shall be specified by the Depository, but subject to the satisfaction of any certification or other requirements to the issuance of securities; provided, however, that no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities of the same series to be redeemed and ending on the relevant Redemption Date. Promptly following any such exchange in part, such global Security shall be returned by the Trustee to such Depository (or its custodian) or such other Depository (or its custodian) referred to above in accordance with the instructions of the Operating Partnership referred to above, and the Trustee shall endorse such global Security to reflect the decrease in the principal amount thereof resulting from such exchange. If a Registered Security is issued in exchange for any portion of a global Security after the close of business at the Office or Agency for such Security where such exchange occurs on or after (i) any Regular Record Date for such Security and before the opening of business at such Office or Agency on the next Interest Payment Date, or (ii) any Special Record Date for such Security and before the opening of business at such Office or Agency on the related proposed date for payment of interest or Defaulted Interest, as the case may be, interest shall not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but shall be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such portion of such global Security shall be payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Operating Partnership evidencing the same debt and entitling the Holders thereof to the same benefits under this Indenture as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Operating Partnership or the Security Registrar for such Security) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Operating Partnership and the Security Registrar for such Security duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, or any redemption or repayment of Securities, or any conversion or exchange of Securities for other types of securities or property, but the Operating Partnership may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 905 or 1107, upon repayment or repurchase in part of any Registered Security pursuant to Article Thirteen, or upon surrender in part of any Registered Security for conversion or exchange into Common Equity or other securities or property pursuant to its terms, in each case not involving any transfer.
Except as otherwise provided in or pursuant to this Indenture, neither the Operating Partnership nor the Trustee, as applicable, shall be required (i) to issue, register the transfer of or exchange any Securities during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of like tenor and terms and of the same series under Section 1103 and ending at the close of business on the day of such selection, or (ii) to register the transfer of or exchange any Registered Security, or portion thereof, so selected for redemption, except in the case of any Registered Security to be redeemed in part, the portion thereof not to be redeemed, or (iii) to issue, register the transfer of or exchange any Security which, in accordance with its terms, has been surrendered for repayment at the option of the Holder pursuant to Article Thirteen and not withdrawn, except the portion, if any, of such Security not to be so repaid.
Section 306 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, subject to the provisions of this Section 306, the Operating Partnership shall execute and, upon receipt of the Operating Partnership Order together with any required Opinions of Counsel and Officers’ Certificates, the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding.
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If there be delivered to the Operating Partnership and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security, and (ii) such security or indemnity as may be reasonably required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Operating Partnership or the Trustee that such Security has been acquired by a bona fide purchaser, the Operating Partnership shall execute and, upon the Operating Partnership’s written request the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security of the same series containing identical terms and of like principal amount and bearing a number not contemporaneously outstanding.
Notwithstanding the foregoing provisions of this Section 306, in case any mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Operating Partnership in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Operating Partnership 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 and its legal counsel) connected therewith.
Every new Security issued pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute a separate obligation of the Operating Partnership, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of such series duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to this Indenture with respect to particular Securities or generally, shall (to the extent lawful) be exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307 Payment of Interest and Certain Additional Amounts; Rights to Interest and Certain Additional Amounts Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Registered Security which shall be payable, and are punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name such Security (or one or more Predecessor Securities) is registered as of the close of business on the Regular Record Date for such interest.
Unless otherwise provided in or pursuant to this Indenture, any interest on and any Additional Amounts with respect to any Registered Security which shall be payable, but shall not be punctually paid or duly provided for, on any Interest Payment Date for such Registered Security (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted Interest may be paid by the Operating Partnership, at its election in each case, as provided in clause (1) or (2) below:
(1) The Operating Partnership may elect to make payment of any Defaulted Interest to the Person in whose name such Registered Security (or a Predecessor Security thereof) shall be 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 Operating Partnership shall notify the Trustee in writing, which the Trustee shall be entitled to rely upon, of the amount of Defaulted Interest proposed to be paid on such Registered Security and the date of the proposed payment, and at the same time the Operating Partnership 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 on or prior to the date of the proposed payment, such money when so deposited to be held in trust for the benefit of the Person entitled to such Defaulted Interest as in this clause provided. Thereupon, the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Operating Partnership of such Special Record Date and, in the name and at the expense of the Operating Partnership shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to the Holder of such Registered Security (or a Predecessor Security thereof) at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Person in whose name such Registered Security (or a Predecessor Security thereof) shall be registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2); or
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(2) The Operating Partnership may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Security may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Operating Partnership to the Trustee of the proposed payment pursuant to this clause, such payment shall be deemed practicable by the Trustee.
Unless otherwise provided in or pursuant to this Indenture or the Securities of any particular series, at the option of the Operating Partnership, interest on Registered Securities on any Interest Payment Date may be paid by mailing a check to the address of the Person entitled thereto as such address shall appear in the Security Register or by transfer to an account maintained by the payee with a bank located in the United States of America.
Subject to the foregoing provisions of this Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 308 Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Operating Partnership, any Guarantor, the Trustee and any agent of the Operating Partnership, any Guarantor or the Trustee may treat the Person in whose name such Registered Security is registered in the Security Register as the owner of such Registered Security for the purpose of receiving payment of principal of, any premium and (subject to Sections 305 and 307) interest on and any Additional Amounts with respect to such Registered Security and for all other purposes whatsoever, whether or not any payment with respect to such Registered Security shall be overdue, and none of the Operating Partnership, any Guarantor, the Trustee or any agent of the Operating Partnership, any Guarantor or the Trustee shall be affected by notice to the contrary.
No owner of any beneficial interest in any global Security held on its behalf by a Depository shall have any rights under this Indenture with respect to such global Security, and such Depository may be treated by the Operating Partnership, any Guarantor, the Trustee and any agent of the Operating Partnership, any Guarantor or the Trustee as the owner of such global Security for all purposes whatsoever. None of the Operating Partnership, any Guarantor, the Trustee or any agent of the Operating Partnership, any Guarantor or the Trustee will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, nothing herein shall prevent the Operating Partnership, any Guarantor, the Trustee or any agent of the Operating Partnership, any Guarantor or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the applicable Depository, as a Holder, with respect to a global Security or impair, as between such Depository and the owners of beneficial interests in such global Security, the operation of customary practices governing the exercise of the rights of such Depository (or its nominee) as the Holder of such global Security.
Section 309 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer, exchange or conversion or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be promptly delivered to the Trustee, and any such Securities, as well as Securities surrendered directly to the Trustee for any such purpose, shall be cancelled promptly by the Trustee. The Operating Partnership may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Operating Partnership may have acquired in any manner whatsoever, and all Securities so delivered shall be cancelled promptly by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section, except as expressly permitted by or pursuant to this Indenture. All cancelled Securities held by the Trustee shall be disposed of by the Trustee in accordance with its customary procedures, unless by an Operating Partnership Order the Operating Partnership directs their return to it.
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Section 310 Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture or in the Securities of any series, interest on the Securities shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311 CUSIP Numbers.
The Operating Partnership in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “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 Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Operating Partnership will promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401 Satisfaction and Discharge.
Unless, pursuant to Section 301, the provisions of this Section 401 shall not be applicable with respect to the Securities of any series, upon the direction of the Operating Partnership by an Operating Partnership Order, this Indenture shall cease to be of further effect with respect to any series of Securities specified in such Operating Partnership Order and any Guarantee of such Securities, and the Trustee, on receipt of an Operating Partnership Order, at the expense of the Operating Partnership, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when,
(1) either
(a) all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 306, and (ii) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Operating Partnership or any Affiliate of the Operating Partnership and thereafter repaid to the Operating Partnership or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(b) all such Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) if redeemable at the option of the Operating Partnership, are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Operating Partnership,
and the Operating Partnership, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose, money in the Currency in which such Securities are payable in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, including the principal of, any premium and interest on, and, to the extent that the Securities of such series provide for the payment of Additional Amounts thereon and the amount of any such Additional Amounts which are or will be payable with respect to the Securities of such series is at the time of deposit determinable by the Operating Partnership (in the exercise by the Operating Partnership of its reasonable discretion), any Additional Amounts with respect to, such Securities, to the date of such deposit (in the case of Securities which have become due and payable) or to the Maturity thereof, as the case may be;
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(2) the Operating Partnership has paid or caused to be paid all other sums payable hereunder by the Operating Partnership with respect to the Outstanding Securities of such series (including amounts payable to the Trustee pursuant to Section 606); and
(3) the Operating Partnership has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture as to the Securities of such series have been complied with.
In the event there are Securities of two or more series Outstanding hereunder, the Trustee shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of such series as to which it is Trustee, if in form and content reasonably acceptable to the Trustee and if the other conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with respect to any series of Securities, the obligations of the Operating Partnership to the Trustee under Section 606 and, if money shall have been deposited with the Trustee pursuant to subclause (b) of clause (1) of this Section, the obligations of the Operating Partnership and the Trustee with respect to the Securities of such series under Sections 305, 306, 403, 404, 1002, 1003 and, if applicable to the Securities of such series, 1004 (including, without limitation, with respect to the payment of Additional Amounts, if any, with respect to such Securities as contemplated by Section 1004, but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to Section 401(1)(b)), the obligations of any Guarantor under any Guarantee in respect of Additional Amounts, any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 301 with respect to the Securities of such series) to require the Operating Partnership to repurchase or repay, and the obligations of the Operating Partnership to repurchase or repay, such Securities at the option of the Holders pursuant to Article Thirteen hereof, and any rights of Holders of the Securities of such series (unless otherwise provided pursuant to Section 301 with respect to the Securities of such series) to convert or exchange, and the obligations of the Operating Partnership to convert or exchange, such Securities into Common Equity or other securities or property, shall survive.
Section 402 Defeasance and Covenant Defeasance.
(1) Unless, pursuant to Section 301, either or both of (i) defeasance of the Securities of or within a series under clause (2) of this Section 402 or (ii) Covenant Defeasance of the Securities of or within a series under clause (3) of this Section 402 shall not be applicable with respect to the Securities of such series, then such provisions, together with the other provisions of this Section 402 (with such modifications thereto as may be specified pursuant to Section 301 with respect to any Securities), shall be applicable to such Securities, and the Operating Partnership may at its option by Board Resolution, at any time, with respect to the Securities of or within such series, elect to have Section 402(2) or Section 402(3) be applied to such Outstanding Securities and any Guarantees of such Outstanding Securities upon compliance with the conditions set forth below in this Section 402. Unless otherwise specified pursuant to Section 301 with respect to the Securities of any series, defeasance under clause (2) of this Section 402 and Covenant Defeasance under clause (3) of this Section 402 may be effected only with respect to all, and not less than all, of the Outstanding Securities of any series. To the extent that the terms of any Security established in or pursuant to this Indenture permit the Operating Partnership or any Holder thereof to extend the date on which any payment of principal of, or premium, if any, or interest, if any, on, or Additional Amounts, if any, with respect to such Security is due and payable, then unless otherwise provided pursuant to Section 301, the right to extend such date shall terminate upon defeasance or Covenant Defeasance, as the case may be.
(2) Upon the Operating Partnership’s exercise of the above option applicable to this Section 402(2) with respect to any Securities of or within a series, the Operating Partnership and any Guarantor, as applicable, shall be deemed to have been discharged from their respective obligations with respect to such Outstanding Securities on the date the conditions set forth in clause (4) of this Section 402 are satisfied (hereinafter,
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“defeasance”). For this purpose, such defeasance means that the Operating Partnership shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities, which shall thereafter be deemed to be “Outstanding” only for the purposes of clause (5) of this Section 402 and the other Sections of this Indenture referred to in subclauses (i) through (iv) of this clause (2), and that each of the Operating Partnership and any Guarantor shall be deemed to have satisfied all of their respective other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Operating Partnership, shall execute proper instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such Outstanding Securities to receive, solely (except as provided in subclause (ii) below) from the trust fund described in clause (4)(a) of this Section 402 and as more fully set forth in this Section 402 and 403, payments in respect of the principal of (and premium, if any) and interest, if any, on, and Additional Amounts, if any, with respect to, such Securities when such payments are due, (ii) the obligations of the Operating Partnership and the Trustee with respect to such Securities under Sections 305, 306, 1002, 1003 and, if applicable to the Securities of such series, 1004 (including, without limitation, with respect to the payment of Additional Amounts, if any, with respect to such Securities as contemplated by Section 1004, but only to the extent that the Additional Amounts payable with respect to such Securities exceed the amount deposited in respect of such Additional Amounts pursuant to clause (4)(a) of this Section 402)), the obligations of any Guarantor under a Guarantee in respect of Additional Amounts, as applicable, any rights of Holders of such Securities (unless otherwise provided pursuant to Section 301 with respect to the Securities of such series) to require the Operating Partnership to repurchase or repay, and the obligations of the Operating Partnership to repurchase or repay, such Securities at the option of the Holders pursuant to Article Thirteen hereof, and any rights of Holders of such Securities (unless otherwise provided pursuant to Section 301 with respect to the Securities of such series) to convert or exchange, and the obligations of the Operating Partnership to convert or exchange, such Securities into Common Equity or other securities or property, (iii) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (iv) this Section 402 and Sections 403 and 404. The Operating Partnership may exercise its option under this Section 402(2) notwithstanding the prior exercise of its option under Section 402(3) with respect to such Securities.
(3) Upon the Operating Partnership’s exercise of the above option applicable to this Section 402(3) with respect to any Securities of or within a series, the Operating Partnership and any Guarantor, as applicable, shall be released from their respective obligations under clause (ii) of Section 1005, Section 704 and, to the extent specified pursuant to Section 301, any other covenant applicable to such Securities with respect to such Securities shall cease to be applicable to such Securities on and after the date the conditions set forth in clause (4) of this Section 402 are satisfied (hereinafter, “Covenant Defeasance”), and such Securities shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such Covenant Defeasance means, with respect to such Outstanding Securities, the Operating Partnership and any Guarantor, as applicable, 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 any such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 501(3) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby.
(4) The following shall be the conditions to application of clause (2) or (3) of this Section 402 to any Outstanding Securities of or within a series:
(a) The Operating Partnership shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 607 who shall agree to comply with the provisions of this Section 402 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 such Securities, (1) an amount in Dollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity or, if such defeasance or Covenant Defeasance is to be effected in compliance with subsection (f) below, on the relevant Redemption Date, as the case may be, or (2) Government Obligations applicable to such Securities (determined on the basis of the Currency in
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which such Securities are then specified as payable at Stated Maturity or, if such defeasance or Covenant Defeasance is to be effected in compliance with subsection (f) below, on the relevant Redemption Date, as the case may be) 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 of principal of (and premium, if any) and interest, if any, on such Securities, money in an amount, or (3) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the written opinion of a nationally recognized firm of independent public accountants delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if any) and interest, if any, on, and, to the extent that such Securities provide for the payment of Additional Amounts thereon and the amount of any such Additional Amounts which are or will be payable with respect to the Securities of such series is at the time of deposit reasonably determinable by the Operating Partnership (in the exercise by the Operating Partnership of its reasonable discretion), any Additional Amounts with respect to, such Outstanding Securities on the Maturity or Stated Maturity of such principal or interest, and (z) any mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities.
(b) Such defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Operating Partnership or any Guarantor is a party or by which the Operating Partnership or any Guarantor is bound.
(c) No Event of Default or event which, with notice or lapse of time or both, would become an Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit, and, solely in the case of defeasance under Section 402(2), no Event of Default with respect to such Securities under clause (5), (6) or (7) of Section 501 or event which with notice or lapse of time or both would become an Event of Default with respect to such Securities under clause (5), (6) or (7) of Section 501 shall have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit (it being understood that this condition to defeasance under Section 402(2) shall not be deemed satisfied until the expiration of such period).
(d) In the case of defeasance pursuant to Section 402(2), the Operating Partnership shall have delivered to the Trustee an opinion of independent counsel acceptable to the Trustee stating that (x) the Operating Partnership has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in applicable federal income tax law, in either case to the effect that, and based thereon such opinion of independent counsel shall confirm that, the Holders and beneficial owners of such Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred; or, in the case of Covenant Defeasance pursuant to Section 402(3), the Operating Partnership shall have delivered to the Trustee an opinion of independent counsel reasonably acceptable to the Trustee to the effect that the Holders and beneficial owners of such Outstanding Securities and will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred.
(e) The Operating Partnership shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance or Covenant Defeasance, as the case may be, under this Indenture have been complied with.
(f) If the monies or Government Obligations or combination thereof, as the case may be, deposited under subclause (a) above are sufficient to pay the principal of, and premium, if any, and interest, if any, on and, to the extent provided in such subclause (a), Additional Amounts with respect to, such Securities on a particular Redemption Date, the Operating Partnership shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.
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(g) Notwithstanding any other provisions of this Section 402(4), such defeasance or Covenant Defeasance shall be effected in compliance with any additional or substitute terms, conditions or limitations which may be imposed on the Operating Partnership in connection therewith pursuant to Section 301.
(5) Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee (collectively for purposes of this Section 402(5) and Section 403, the “Trustee)) pursuant to clause (4)(a) of Section 402 in respect of any Outstanding Securities of any series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Operating Partnership or any Subsidiary or Affiliate of the Operating Partnership acting as Paying Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified in or pursuant to this Indenture or any Securities, if, after a deposit referred to in Section 402(4)(a) has been made, (a) the Holder of a Security in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 301 or the terms of such Security to receive payment in a Currency other than that in which the deposit pursuant to Section 402(4)(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 402(4)(a) has been made, the indebtedness represented by such Security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any), and interest, if any, on, and Additional Amounts, if any, with respect to, such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which such Security becomes payable as a result of such election or Conversion Event based on (x) in the case of payments made pursuant to subclause (a) above, the applicable market exchange rate for such Currency in effect on the second Business Day prior to each payment date, or (y) with respect to a Conversion Event, the applicable market exchange rate for such Foreign Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Operating Partnership shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 or the principal or 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 such Outstanding Securities.
Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Operating Partnership from time to time upon Operating Partnership Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in clause (4)(a) of this Section 402 which, in the written opinion of a nationally recognized firm of independent public accountants delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a defeasance or Covenant Defeasance, as applicable, in accordance with this Section 402.
Section 403 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations deposited with the Trustee pursuant to Section 401 or 402 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Operating Partnership acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal, premium, interest and Additional Amounts for whose payment such money has or Government Obligations have been deposited with or received by the Trustee; but such money and Government Obligations need not be segregated from other funds except to the extent required by law.
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Section 404 Reinstatement.
If the Trustee (or other qualifying trustee appointed pursuant to Section 402(4)(a)) or any Paying Agent is unable to apply any moneys or Government Obligations deposited pursuant to Section 401(1) or 402(4)(a) to pay any principal of or premium, if any, or interest, if any, on or Additional Amounts, if any, with respect to the Securities of any series by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Operating Partnership’s obligations under this Indenture and the Securities of such series and the Guarantee shall be revived and reinstated as though no such deposit had occurred, until such time as the Trustee (or other qualifying trustee) or Paying Agent is permitted to apply all such moneys and Government Obligations to pay the principal of and premium, if any, and interest, if any, on and Additional Amounts, if any, in respect of the Securities of such series as contemplated by Section 401 or 402 as the case may be, and Section 403; provided, however, that if the Operating Partnership makes any payment of the principal of or premium, if any, or interest, if any, on or Additional Amounts, if any, in respect of the Securities of such series following the reinstatement of its obligations as aforesaid, the Operating Partnership shall be subrogated to the rights of the Holders of such Securities to receive such payment from the funds held by the Trustee (or other qualifying trustee) or Paying Agent.
Section 405 Qualifying Trustee.
Any trustee appointed pursuant to Section 402(4)(a) for the purpose of holding trust funds deposited pursuant to that Section shall be appointed under an agreement in form acceptable to the Trustee and shall provide to the Trustee a certificate of such trustee, upon which certificate the Trustee shall be entitled to conclusively rely, that all conditions precedent provided for herein to the related defeasance or Covenant Defeasance have been complied with. In no event shall the Trustee be liable for any acts or omissions of said trustee.
ARTICLE FIVE
REMEDIES
Section 501 Events of Default.
An “Event of Default” wherever used herein with respect to Securities of any series (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) means any of the following events, or any other event as specified in accordance with Section 301 for a particular series of Securities:
(1) default for thirty (30) days in the payment of any installment of interest or Additional Amounts payable with respect to such interest under the Securities of that series;
(2) default in the payment of the principal of or premium, if any, on, or any Additional Amounts payable in respect of any principal of or premium, if any, on, the Securities of that series, when the same becomes due and payable or default is made in the deposit of any sinking fund payment with respect to the Securities of that series when due;
(3) the Operating Partnership fails to comply with any of the Operating Partnership’s other agreements contained in the Securities of that series or this Indenture (other than an agreement a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly been included in this Indenture solely for the benefit of series of Securities other than that series) upon receipt by the Operating Partnership of notice of such default by the Trustee or receipt by the Operating Partnership and the Trustee of notice of such default by Holders of not less than twenty five percent (25%) in aggregate principal amount of the Securities of that series then outstanding and the Operating Partnership fails to cure (or obtain a waiver of) such default within sixty (60) days after the Operating Partnership receives such notice;
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(4) failure to pay any recourse indebtedness for monies borrowed by the Operating Partnership, any Guarantor or any Significant Subsidiary in an outstanding principal amount in excess of $50 million at final maturity or upon acceleration after the expiration of any applicable notice and grace period, which recourse indebtedness is not discharged, or such default in payment or acceleration is not cured or rescinded, within thirty (30) days after written notice to the Operating Partnership from the Trustee (or to the Operating Partnership and the Trustee from Holders of at least twenty five percent (25%) in principal amount of the outstanding Securities of that series);
(5) the Operating Partnership, any Guarantor or any Significant Subsidiary pursuant to, under or within the meaning of any Bankruptcy Law: (a) commences a voluntary case or proceeding seeking liquidation, reorganization or other relief with respect to the Operating Partnership, any Guarantor or any Significant Subsidiary or its debts or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Operating Partnership, any Guarantor or any Significant Subsidiary or any substantial part of the property of the Operating Partnership, any Guarantor or any Significant Subsidiary; (b) consents to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against the Operating Partnership, any Guarantor or any Significant Subsidiary; (c) consents to the appointment of a custodian of it or for all or substantially all of its property; or (d) makes a general assignment for the benefit of creditors;
(6) an involuntary case or other proceeding shall be commenced against the Operating Partnership, any Guarantor or any Significant Subsidiary seeking liquidation, reorganization or other relief with respect to the Operating Partnership, any Guarantor or any Significant Subsidiary or its debts under any Bankruptcy Law or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Operating Partnership, any Guarantor or any Significant Subsidiary or any substantial part of the property of the Operating Partnership, any Guarantor or any Significant Subsidiary, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of thirty (30) calendar days; or
(7) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: (a) is for relief against the Operating Partnership, any Guarantor or any Significant Subsidiary in an involuntary case or proceeding; (b) appoints a trustee, receiver, liquidator, custodian or other similar official of the Operating Partnership, any Guarantor or any Significant Subsidiary or any substantial part of the property of the Operating Partnership, any Guarantor or any Significant Subsidiary; or (c) orders the liquidation of the Operating Partnership, any Guarantor or any Significant Subsidiary; and, in each case in this clause (7), the order or decree remains unstayed and in effect for thirty (30) calendar days.
Section 502 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in clause (5), (6) or (7) of Section 501) with respect to Securities of any series occurs and is continuing, then either the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series may declare the principal of, and premium, if any, on all of the Securities of such series, or such lesser amount as may be provided for in the Securities of such series, and accrued and unpaid interest, if any, thereon to be due and payable immediately, by a notice in writing to the Operating Partnership (and to the Trustee if given by the Holders), and upon any such declaration such principal or such lesser amount, as the case may be, and such accrued and unpaid interest shall become immediately due and payable. If an Event of Default specified in clause (5), (6) or (7) of Section 501 with respect to the Securities of any series occurs, then the principal of, and premium, if any, on all of the Securities of such series, or such lesser amount as may be provided for in the Securities of such series, and accrued and unpaid interest, if any, thereon shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder of the Securities of such series.
At any time after Securities of any series have been accelerated by declaration of the Trustee or the Holders 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 aggregate principal amount of the Outstanding Securities of such series, by written notice to the Operating Partnership, any Guarantor and the Trustee, may rescind and annul such declaration and its consequences if
(1) the Operating Partnership or the Company has paid or deposited, or cause to be paid or deposited, with the Trustee a sum of money sufficient to pay (or, to the extent that the terms of the Securities of such series established pursuant to Section 301 expressly provide for payment to be made in shares of Common Equity or other securities or property, shares of Common Equity or other securities or property, together with cash in lieu of fractional shares or securities, sufficient to pay)
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(a) all overdue installments of any interest on any Securities of such series which have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto,
(b) the principal of and any premium on any Securities of such series which have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto and, to the extent permitted by applicable law, interest thereon at the rate or respective rates, as the case may be, provided for in or with respect to such Securities, or, if no such rate or rates are so provided, at the rate or respective rates, as the case may be, of interest borne by such Securities,
(c) to the extent permitted by applicable law, interest upon installments of any interest, if any, which have become due otherwise than by such declaration of acceleration and any Additional Amounts with respect thereto at the rate or respective rates, as the case may be, provided for in or with respect to such Securities, or, if no such rate or rates are so provided, at the rate or respective rates, as the case may be, of interest borne by such Securities, and
(d) 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 all other amounts due the Trustee under Section 606; and
(2) all Events of Default with respect to Securities of such series other than the non-payment of the principal of, any premium and interest on, and any Additional Amounts with respect to Securities of such series which shall have become due solely by such declaration of acceleration, shall have been waived as provided in Section 513 or cured.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Operating Partnership covenants that if:
(1) default is made in the payment of any interest on, or any Additional Amounts payable in respect of any interest on, any Security when such interest or Additional Amounts, as the case may be, shall have become due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of any principal of or premium, if any, on, or any Additional Amounts payable in respect of any principal of or premium, if any, on, any Security at its Maturity, when the same becomes due and payable, or
(3) default is made in the deposit of any sinking fund payment, if applicable, when due, and such default continues for three Business Days,
the Operating Partnership or any Guarantor shall, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities, the whole amount of money then due and payable with respect to such Securities, with interest upon the overdue principal, any premium and, to the extent permitted by applicable law, upon any overdue installments of interest and Additional Amounts at the rate or respective rates, as the case may be, provided for or with respect to such Securities or, if no such rate or rates are so provided, at the rate or respective rates, as the case may be, of interest borne by such Securities, and, in addition thereto, such further amount of money as shall be sufficient to cover the costs and expenses of collection, including the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 606.
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If the Operating Partnership (and any applicable Guarantor) fails to pay the money it is required to pay the Trustee pursuant to the preceding paragraph forthwith upon the demand of the Trustee, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the money so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same against the Operating Partnership, any Guarantor or any other obligor upon such Securities and collect the monies adjudged or decreed to be payable in the manner provided by law out of the property of the Operating Partnership, any Guarantor or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or such Securities or in aid of the exercise of any power granted herein or therein, or to enforce any other proper remedy.
Section 504 Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Operating Partnership, any Guarantor or any other obligor upon the Securities or the property of the Operating Partnership, such Guarantor or such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Operating Partnership for the payment of any overdue principal, premium, interest or Additional Amounts) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(1) to file and prove a claim for the whole amount, or such lesser amount as may be provided for in the Securities of such series, of the principal and any premium, interest and Additional Amounts owing and unpaid in respect of the Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents or counsel) and of the Holders of Securities allowed in such judicial proceeding, and
(2) to collect and receive any monies 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 of Securities to make such payments to the Trustee and, in the event that the Trustee shall consent in writing in its sole discretion to the making of such payments directly to the Holders of Securities, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee (acting in any capacity hereunder), its agents and counsel and any other amounts due the Trustee hereunder.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security in any such proceeding.
Section 505 Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or any of the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities 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 or judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of each and every Holder of a Security in respect of which such judgment has been recovered.
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Section 506 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article Five with respect to the Securities of any series 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 any premium, interest or Additional Amounts, upon presentation of such Securities, or both, as the case may be, 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 (acting in any capacity hereunder) and any predecessor Trustee under the Indenture;
SECOND: To the payment of the amounts then due and unpaid upon the Securities for principal and any premium, interest and Additional Amounts 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 aggregate amounts due and payable on such Securities for principal and any premium, interest and Additional Amounts;
THIRD: The balance, if any, to the Operating Partnership.
Section 507 Limitations on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;
(2) the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of such series 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;
(3) such Holder or Holders have offered to the Trustee indemnity or security reasonably satisfactory to it against the losses, damages, costs, expenses and liabilities, including reasonable attorneys’ fees, costs and expenses and court costs, to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) 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 aggregate principal amount of the Outstanding Securities of such series;
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 Security to affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any other series, or to obtain or to seek to obtain priority or preference over any other Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
Section 508 Unconditional Right of Holders to Receive Principal and any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of, and premium, if any, and (subject to Sections 305 and 307) interest, if any, on and any Additional Amounts with respect to such Security, on the respective Stated Maturity or Maturities therefor specified in such Security (or, in the case of redemption, on the Redemption Date or, in the case of repayment pursuant to Article Thirteen hereof at the option of such Holder if provided in or pursuant to this Indenture, on the date such repayment is due) and, in the case of any Security which is convertible into or exchangeable for other securities or property, to convert or exchange, as the case may be, such Security in accordance with its terms, and to institute suit for the enforcement of any such payment and any such right to convert or exchange, and such right shall not be impaired without the consent of such Holder.
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Section 509 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Operating Partnership, any Guarantor (if applicable), the Trustee and each such Holder shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and each such Holder shall continue as though no such proceeding had been instituted.
Section 510 Rights and Remedies Cumulative.
To the extent permitted by applicable law and except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to each and every Holder of a Security is intended to be exclusive of any other right or remedy, and every right and remedy, to the extent permitted by law, shall 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, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 511 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall, to the extent permitted by applicable law, 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 any Holder of a Security may, to the extent permitted by applicable law, be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by such Holder, as the case may be.
Section 512 Control by Holders of Securities.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series 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 Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of law or with this Indenture or with the Securities of any series and could not involve the Trustee in personal liability,
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction,
(3) such direction is not unduly prejudicial to the rights of the other Holders of Securities of such series (or any other series) not joining in such action, and
(4) the Holders shall have provided the Trustee with security, indemnity or both, reasonably satisfactory to the Trustee.
Section 513 Waiver of Past Defaults.
The Holders of a majority in aggregate principal amount of the Outstanding Securities of any series on behalf of the Holders of all the Securities of such series may waive any past default hereunder with respect to such series and its consequences, except
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(1) a continuing default in the payment of the principal of, any premium or interest on, or any Additional Amounts with respect to, any Security of such series, or
(2) in the case of any Securities which are convertible into or exchangeable for Common Equity or other securities or property, a continuing default in any such conversion or exchange, or
(3) a continuing default in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series 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 514 Waiver of Usury, Stay or Extension Laws.
The Operating Partnership covenants that (to the extent that it may lawfully do so) it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law or any usury law or any other law wherever enacted, now or at any time hereafter in force, which would prohibit or forgive the Operating Partnership or any applicable Guarantor from paying all or any portion of the principal of or premium, if any, or interest, if any on or Additional Amounts, if any, as contemplated in this Indenture, any Guarantee and the Securities or which may affect the covenants or the performance of this Indenture or the Securities; and each of the Operating Partnership and any Guarantor 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 or the Holders, but will suffer and permit the execution of every such power as though no such law had been enacted.
Section 515 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, 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 or omitted by it as Trustee, the filing by any party litigant in such suit of any undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and disbursements, against any party litigant in such suit having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 515 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest, if any, on or Additional Amounts, if any, with respect to any Security on or after the respective Stated Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date, and, in the case of repayment at the option of the Holder pursuant to Article Thirteen hereof, on or after the date for repayment) or for the enforcement of the right, if any, to convert or exchange any Security into Common Equity or other securities or property in accordance with its terms.
ARTICLE SIX
THE TRUSTEE
Section 601 Certain Rights of Trustee.
The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act; provided, that (i) notwithstanding Section 315(a)(2) of the Trust Indenture Act, the Trustee need not confirm or investigate the accuracy of any mathematical calculations or other facts, statements, opinions or conclusions stated in the certificates or opinions referred to therein, and (ii) except during the continuance of an Event of Default, no implied covenants or obligations shall be read into this Indenture against the Trustee. 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.
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In connection with this Indenture and any Securities issued hereunder, subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(1) 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, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any request or direction of the Operating Partnership or any Guarantor shall be sufficiently evidenced by an Operating Partnership Request or an Operating Partnership Order (in each case, other than delivery of any Security, to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(3) Before the Trustee acts or refrains from acting, it may require an Officers’ Certificate or an Opinion of Counsel, or both, subject to the other provisions of this Indenture, the Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers’ Certificate or Opinion of Counsel;
(4) the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by or pursuant to this Indenture at the request or direction of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee indemnity or security satisfactory to the Trustee against the losses, damages, costs, expenses and liabilities, including reasonable attorneys’ fees, costs and expenses and court costs, which might be incurred by it in compliance with such request or direction;
(6) 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, coupon or other paper or document, but the Trustee, in its sole 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, upon reasonable prior written notice and during normal business hours, it shall be entitled to examine the books, records and premises of the Operating Partnership, personally or by agent or attorney and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
(7) 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;
(8) the Trustee need perform only those duties that are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee. The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within its rights or powers. The permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do so;
(9) the Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail (PDF only), facsimile transmission or other similar unsecured electronic methods, provided, however, that the Operating Partnership and any Guarantor, as applicable, shall provide to the Trustee an incumbency certificate listing designated persons with the authority to provide such instructions, which incumbency certificate shall be amended whenever a person is to be added or deleted from the listing. If the Operating Partnership or any Guarantor elects to give the Trustee e-mail or facsimile transmission instructions (or instructions
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by a similar electronic method) and the Trustee in its sole and absolute discretion elects to act upon such instructions, the Trustee’s understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, damages, costs, fees or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such instructions notwithstanding such instructions conflict or inconsistency with a subsequent written instruction. The Operating Partnership and any Guarantor, as applicable, agree to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including, without limitation, the risk of the Trustee acting on unauthorized instructions, and the risk of interception by third parties;
(10) 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 other Person employed to act hereunder;
(11) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(12) in no event shall the Trustee be required to give any bond or surety in respect of the performance of its powers and duties hereunder;
(13) the Trustee may request that the Operating Partnership and any Guarantor deliver an Officers’ Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded; and
(14) The Trustee shall have no duty to inquire as to the performance of, or otherwise monitor compliance with, the Company’s covenants herein.
Section 602 Notice of Defaults.
Within 90 days after the Trustee has actual knowledge of the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series, notice of such default hereunder actually known to the Trustee, unless such default shall have been cured or waived; provided, however, that except in the case of a default in the payment of the principal of (or premium, if any) or interest on or any Additional Amounts with respect to any Security of such series, or in the payment of any sinking fund installment with respect to the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Holders of the Securities of such series; and provided further in the case of any default of the character specified in Section 501(3) with respect to Securities of such series, no such notice to Holders shall be given until at least 60 days after the Operating Partnership has notice 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 Securities of such series; provided that any default that results solely from the taking of an action that would have been permitted but for the continuation of a previous default will be deemed to be cured if such previous default is cured prior to becoming an Event of Default. The Trustee shall not be charged with knowledge of any default or Event of Default under this Indenture or related documents unless (i) a Responsible Officer of the Trustee shall have actual knowledge of such Default or Event of Default or (ii) the Trustee shall have received notice in writing of such default or Event of Default by the Operating Partnership or by the Holders of at least 25% in aggregate principal amount of the Securities then Outstanding of the affected series, and such notice is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture.
Section 603 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificate of authentication, shall be taken as the statements of the Operating Partnership, 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 Securities, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture,
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authenticate the Securities and perform its obligations hereunder and that the statements made by it in a Statement of Eligibility on Form T-1 supplied to the Operating Partnership are true and accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Operating Partnership of the Securities or the proceeds thereof.
Section 604 May Hold Securities; Transactions with the Operating Partnership or any Guarantor.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other Person that may be an agent of the Trustee or the Operating Partnership, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Operating Partnership or any Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other Person; provided, however, that if the Trustee acquires any conflicting interest under the Trust Indenture Act relating to any of its duties with respect to the Securities, it must either eliminate such conflict or resign as Trustee, subject to its right under the Trust Indenture Act to seek a stay of its duty to resign. If and when the Trustee shall be or become a creditor of the Operating Partnership or any other obligor upon the Securities, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Operating Partnership or any such other obligor.
Section 605 Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law and shall be held uninvested. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Operating Partnership.
Section 606 Compensation and Reimbursement.
The Operating Partnership and, in the event that the Operating Partnership fails to perform the following obligations and indemnities, any Guarantor, agrees:
(1) to pay to the Trustee from time to time such compensation as agreed in writing for all services rendered by the Trustee (in any capacity) hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the Trustee (acting in any capacity hereunder) 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, such as attorneys’ fees, costs and expenses), except any such expense, disbursement or advance as may be attributable to the Trustee’s negligence or willful misconduct; and
(3) to indemnify the Trustee (acting in any capacity hereunder), its directors, officers, employees and its agents for, and to hold them harmless against, any loss, claim, cause of action, damage, liability or reasonable cost or expense (including, without limitation, the reasonable fees and disbursements of the Trustee’s agents, legal counsel, accountants and experts), arising out of or in connection with this Indenture or the acceptance or administration of the trust or trusts hereunder, including the reasonable costs and expenses of defending themselves against any claim (whether asserted by the Operating Partnership, any Guarantor, a Holder or any other Person) or liability in connection with the exercise or performance of any of their powers or duties hereunder, except to the extent that any such loss, claim, cause of action, damage, liability or expense was due to the Trustee’s negligence or willful misconduct.
The foregoing payment obligations and indemnities shall survive the termination of this Indenture and the resignation or removal of the Trustee.
As security for the performance of the obligations of the Operating Partnership and any Guarantor under this Section, the Trustee shall have a lien prior to the Securities of any series upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of, or premium or interest on or any Additional Amounts with respect to particular Securities.
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Without prejudice to any other rights available to the Trustee under applicable law, any compensation or expense incurred by the Trustee after a default specified by Section 501(5), (6) or (7) is intended to constitute an expense of administration under any then applicable bankruptcy or insolvency law. “Trustee” for purposes of this Section 606 shall include any predecessor Trustee but the negligence or willful misconduct of any Trustee shall not affect the rights of any other Trustee under this Section 606. The provisions of this Section 606 shall, to the extent permitted by law, survive any termination or expiration of this Indenture (including, without limitation, termination pursuant to any bankruptcy or insolvency laws) and the resignation or removal of the Trustee.
Section 607 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation, organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, eligible under Section 310(a)(1) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000 subject to supervision or examination by federal or state authority. No obligor upon this Indenture of any Securities or person directly or indirectly controlling, controlled by, or under common control with such obligor shall serve as Trustee. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 608 Resignation and Removal; Appointment of Successor.
(1) 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 pursuant to Section 609.
(2) The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Operating Partnership. If the instrument of acceptance by a successor Trustee required by Section 609 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition, at the expense of the Operating Partnership, any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(3) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, delivered to the Trustee and the Operating Partnership. If the instrument of acceptance by a successor Trustee required by Section 609 shall not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition, at the expense of the Operating Partnership, any court of competent jurisdiction for the appointment of a successor Trustee with respect to such series.
(4) If at any time:
(a) the Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of the Trust Indenture Act with respect to Securities of any series after written request therefor by the Operating Partnership or any Holder of a Security of such series who has been a bona fide Holder of a Security of such series for at least six months, or
(b) the Trustee shall cease to be eligible under Section 607 and shall fail to resign after written request therefor by the Operating Partnership or any such Holder, or
(c) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
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then, in any such case, (i) the Operating Partnership, by or pursuant to a Board Resolution, may remove the Trustee with respect to all Securities or the Securities of such series, or (ii) subject to Section 315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.
(5) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Operating Partnership, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 609. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series delivered to the Operating Partnership 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 609, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Operating Partnership. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Operating Partnership or the Holders of Securities and accepted appointment in the manner required by Section 609, any Holder of a Security who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(6) The Operating Partnership shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series by mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Security Register. Each notice shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 609 Acceptance of Appointment by Successor.
(1) Upon the appointment hereunder of any successor Trustee with respect to all Securities, such successor Trustee so appointed shall execute, acknowledge and deliver to the Operating Partnership and 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 hereunder of the retiring Trustee; but, on the request of the Operating Partnership or such successor Trustee, such retiring Trustee, upon payment of its charges, shall execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and, subject to Section 1003, shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in Section 606.
(2) Upon the appointment hereunder of any successor Trustee with respect to the Securities of one or more (but not all) series, the Operating Partnership, any Guarantor, the retiring Trustee and such successor Trustee shall execute and deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein
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or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee shall be trustee of a trust or trusts separate and apart from trust or trusts hereunder administered by any other such Trustee and that no Trustee shall be responsible for any notice given to, or received by, or any act or failure to act on the part of any other Trustee hereunder, and, upon the execution and delivery of such supplemental indenture, the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, such retiring Trustee shall have no further responsibility for the exercise of rights and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture with respect to the Securities of that or those series to which the appointment of such successor Trustee relates other than as hereinafter expressly set forth, 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 Securities of that or those series to which the appointment of such successor Trustee relates; but, on written request of the Operating Partnership or such successor Trustee, such retiring Trustee, upon payment of its charges with respect to the Securities of that or those series to which the appointment of such successor relates and subject to Section 1003 shall duly assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, subject to its lien, if any, provided for in Section 606.
(3) Upon request of any Person appointed hereunder as a successor Trustee, the Operating Partnership and any Guarantor shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) or (2) of this Section, as the case may be.
(4) No Person shall accept its appointment hereunder as a successor Trustee unless at the time of such acceptance such successor Person shall be qualified under the Trust Indenture Act and eligible under this Article.
Section 610 Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any Corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder (provided that such Corporation shall otherwise be qualified under the Trust Indenture Act and eligible under this Article), without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated but not delivered by the Trustee then in office, any such successor to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any Securities shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities in either its own name or that of its predecessor Trustee.
Section 611 Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to the Operating Partnership with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of that or those series issued upon original issue, exchange, registration of transfer, partial redemption, partial repayment, partial conversion or exchange for Common Equity or other securities or property, or pursuant to Section 306, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Operating Partnership and, except as provided in or pursuant to this Indenture, shall at all times be a Corporation that would be permitted by the Trust Indenture Act to act as trustee under an indenture qualified under the Trust Indenture Act, is authorized under applicable law and by its charter to act as an Authenticating Agent and has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect specified in this Section.
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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 all or substantially all of the corporate agency or corporate trust business of an Authenticating Agent, shall be the successor of such Authenticating Agent hereunder, 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 the Operating Partnership. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and the Operating Partnership. 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 Operating Partnership and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Registered Securities, if any, of the series with respect to which such Authenticating Agent shall serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Operating Partnership agrees to pay each Authenticating Agent from time to time reasonable compensation for its services under this Section. If the Trustee makes such payments, it shall be entitled to be reimbursed for such payments, subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more series of Securities pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication in substantially the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
| [NAME OF AUTHENTICATING AGENT], as Authenticating Agent | ||
| By: | ||
| Authorized Signatory | ||
| Dated: | ||
If all of the Securities of any series may not be originally issued at one time, and if the Trustee does not have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Operating Partnership wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested in writing (which writing need not be accompanied by or contained in an Officers’ Certificate of the Operating Partnership), shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the Operating Partnership with respect to such series of Securities.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE, OPERATING PARTNERSHIP AND GUARANTORS
Section 701 Operating Partnership to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Operating Partnership shall furnish or cause to be furnished to the Trustee,
(1) semi-annually with respect to Securities of each series, a list, in each case in such form as the Trustee may reasonably require, of the names and addresses of Holders as of the applicable date, and
(2) at such other times as the Trustee may reasonably request in writing, within 30 days after the receipt by the Operating Partnership of any such request, a list of the names and addresses of Holders as of a date not more than 15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no such list shall be required to be furnished pursuant to either clause (1) or clause (2) of this Section 701.
Section 702 Preservation of Information; Communications to Holders.
(1) 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 701 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee shall comply with the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.
(2) Every Holder of Securities, by receiving and holding the same, agrees with the Operating Partnership, any Guarantor and the Trustee that none of the Operating Partnership, any Guarantor or the Trustee or any agent of any of them shall be held accountable by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with the Trust Indenture Act, regardless of the source from which such information was derived.
Section 703 Reports by Trustee.
(1) Within 60 days after May 15 of each year commencing with the first May 15 following the first issuance of Securities pursuant to Section 301, if required by Section 313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated as of such May 15 with respect to any of the events specified in said Section 313(a) which may have occurred since the later of the immediately preceding May 15 and the date of this Indenture.
(2) The Trustee shall transmit the reports required by the Trust Indenture Act, including Sections 313(a), 313(b), 313(c) and 313(d), at the times, in the manner and to the Persons specified therein.
(3) 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 Securities are listed, with the Commission and the Operating Partnership. The Operating Partnership will promptly notify the Trustee when any Securities are listed on any stock exchange.
Section 704 Reports by the Operating Partnership.
For so long as any Securities are outstanding, if the Operating Partnership is subject to Section 13(a) or 15(d) of the Exchange Act or any successor provision, the Operating Partnership will deliver to the Trustee the annual reports, quarterly reports and other documents which it is required to file with the Commission pursuant to Section 13(a) or 15(d) or any successor provision, within 15 days after the date that the Operating Partnership files the same with the Commission. If the Operating Partnership is not subject to Section 13(a) or 15(d) of the Exchange Act or any successor provision, and for so long
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as any Securities are outstanding, the Operating Partnership will deliver to the Trustee the quarterly and annual financial statements and accompanying Item 303 of Regulation S-K (“management’s discussion and analysis of financial condition and results of operations”) disclosure that would be required to be contained in annual reports on Form 10-K and quarterly reports on Form 10-Q required to be filed with the Commission if the Operating Partnership was subject to Section 13(a) or 15(d) of the Exchange Act or any successor provision, within 15 days of the filing date that would be applicable to the Operating Partnership at that time pursuant to applicable Commission rules and regulations.
Reports and other documents filed with the Commission via the EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of this covenant; provided, however, that the Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed via EDGAR. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including its compliance with any of the covenants relating to the Securities (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate).
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALES AND SUBSTITUTION
Section 801 Operating Partnership May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in the Securities shall prevent any consolidation or merger of the Operating Partnership with or into any other Person or Persons (whether or not affiliated with the Operating Partnership), or successive consolidations or mergers in which either the Operating Partnership will be the continuing entity or the Operating Partnership or its successor or successors shall be a party or parties, or shall prevent any sale, assignment, conveyance, transfer or lease of all or substantially all of the property and assets of the Operating Partnership, to any other Person (whether or not affiliated with the Operating Partnership); provided, however, that the following conditions are met:
(1) the Operating Partnership shall be the continuing entity, or the successor entity (if other than the Operating Partnership) formed by or resulting from any consolidation or merger or which shall have received the sale, assignment, conveyance, transfer or lease of property and assets shall be domiciled in the United States, any state thereof or the District of Columbia and shall expressly assume payment of the principal of and interest on all of the Securities and the due and punctual performance and observance of all of the covenants and conditions in this Indenture;
(2) immediately after giving effect to 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 occurred and be continuing; and
(3) either the Operating Partnership or the successor Person, in either case, shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger, sale, assignment, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Article Eight and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 802 Guarantor May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in the Securities shall prevent any consolidation or merger of any Guarantor with or into any other Person or Persons (whether or not affiliated with such Guarantor), or successive consolidations or mergers in which such Guarantor will be the continuing entity or such Guarantor or its successor or successors shall be a party or parties, or shall prevent any sale, assignment, conveyance, transfer or lease of all or substantially all of the property and assets of such Guarantor, to any other Person (whether or not affiliated with such Guarantor); provided, however, that the following conditions are met:
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(1) such Guarantor shall be the continuing entity, or the successor entity (if other than such Guarantor) formed by or resulting from any consolidation or merger or which shall have received the sale, assignment, conveyance, transfer or lease of property and assets shall be domiciled in the United States, any state thereof or the District of Columbia and shall expressly assume the obligations of such Guarantor under the applicable Guarantee and the due and punctual performance and observance of all of the covenants and conditions in this Indenture;
(2) immediately after giving effect to 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 occurred and be continuing; and
(3) either such Guarantor or the successor Person, in either case, shall have delivered to the Trustee an Officers’ Certificate of such Guarantor and an Opinion of Counsel, each stating that such consolidation, sale, merger, conveyance, transfer or lease and such supplemental indenture comply with this Article Eight and that all conditions precedent herein provided for relating to such transaction have been complied with.
Section 803 Successor Person Substituted for Operating Partnership or Guarantor.
If the Operating Partnership or any Guarantor shall, in any transaction or series of related transactions, consolidate with or merge into any Person or sell, assign, transfer, lease or otherwise convey all or substantially all its property and assets to any Person, in each case in accordance with Section 801 or Section 802, as applicable, the successor Person formed by or resulting from such consolidation or merger or to which such sale, assignment, transfer, lease or other conveyance of all or substantially all of the properties and assets of the Operating Partnership or such Guarantor, as applicable, is made, shall succeed to, and be substituted for, and may exercise every right and power of, the Operating Partnership or the Guarantor, as applicable, under this Indenture, with respect to the Outstanding Securities of the applicable series, with the same effect as if such successor Person had been named as the Operating Partnership or Guarantor, as applicable, herein; and thereafter, except in the case of a lease, the predecessor Person shall be released from all obligations and covenants under this Indenture and the applicable Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Operating Partnership (when authorized by or pursuant to a Board Resolution), any Guarantor, if affected thereby, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto for any of the following purposes:
(1) to evidence the succession of another Person to the Operating Partnership or any Guarantor, if applicable, or successive successions, and the assumption by any such successor of the covenants of the Operating Partnership or any Guarantor, if applicable, contained herein and in the Securities; or
(2) to add to the covenants of the Operating Partnership or any Guarantor for the benefit of the Holders of all or any series of Securities (as shall be specified in such supplemental indenture or indentures) or to surrender any right or power herein conferred upon the Operating Partnership or any Guarantor with respect to all or any series of Securities issued under this Indenture (as shall be specified in such supplemental indenture or indentures); or
(3) to change or eliminate any restrictions on the payment of principal of or any premium or interest on or any Additional Amounts with respect to any Securities or any Guarantee, provided any such action shall not adversely affect the interests of the Holders of Securities of any series; or
(4) to establish the form or terms of Securities of any series as permitted by Sections 201 and 301, including, without limitation, any conversion or exchange provisions applicable to Securities which are convertible into or exchangeable for other securities or property, and any deletions from or additions or changes to this Indenture in connection therewith (provided that any such deletions, additions and changes shall not be applicable to any other series of Securities then Outstanding); or
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(5) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609; or
(6) to cure any ambiguity, defect or inconsistency in the Indenture; or
(7) to make any change necessary to comply with any requirement of the Commission in connection with the Indenture under the Trust Indenture Act; or
(8) to add any additional Events of Default for the benefit of the Holders with respect to all or any series of Securities (as shall be specified in such supplemental indenture) (and if such additional Events of Default are to be for the benefit of less than all of the Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series); or
(9) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance, Covenant Defeasance and/or satisfaction and discharge of any series of Securities pursuant to Article Four, provided that any such action shall not adversely affect the interests of any Holder of a Security of such series or any other Security; or
(10) to add one or more Guarantees for the benefit of Holders of all or any series of Securities, to secure the Securities or to confirm and evidence the release, termination or discharge of any Guarantee or lien securing the Securities which such release, termination or discharge is permitted by this Indenture; or
(11) to amend or supplement any provision contained herein or in any supplemental indenture or in any Securities (which amendment or supplement may apply to one or more series of Securities or to one or more Securities within any series as specified in such supplemental indenture or indentures), provided that such amendment or supplement (A) does not (i) apply to any Outstanding Security issued prior to the date of such supplemental indenture and entitled to the benefits of such provision or (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall become effective only when there is no Security described in clause (A)(i) Outstanding; or
(12) in the case of any series of Securities which are convertible into or exchangeable for Common Equity or other securities or property, to safeguard or provide for the conversion or exchange rights, as the case may be, of such Securities in the event of any reclassification or change of outstanding shares of Common Equity or any merger, consolidation, statutory share exchange or combination of the Operating Partnership with or into another Person or any sale, lease, assignment, transfer, disposition or other conveyance of all or substantially all of the assets of the Operating Partnership to any other Person or other similar transactions, if expressly required by the terms of such series of Securities established pursuant to Section 301; or
(13) to conform the terms of the Indenture or the Securities of a series, as applicable, to the description thereof contained in any prospectus, prospectus supplement or other offering document relating to the offer and sale of such Securities; or
(14) subject to any limitations established pursuant to Section 301, to provide for the issuance of additional Securities of any series; or
(15) to comply with the rules of any applicable Depository; or
(16) to make any change that would provide any additional rights or benefits to the Holders or that does not adversely affect the legal rights under this Indenture of any Holder in any material respect;
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(17) 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 Securities in uncertificated form; or
(18) to comply with the rules or regulations of any securities exchange or automated quotation system on which any of the Securities may be listed or traded.
Section 902 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of a majority in aggregate principal amount of the Outstanding Securities of each series affected by such supplemental indenture (voting as separate classes) by Act of said Holders delivered to the Operating Partnership and the Trustee, the Operating Partnership (when authorized by or pursuant to a Board Resolution), any Guarantor, if affected thereby, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of the Securities of such series or of any Guarantee or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, that no such supplemental indenture, without the consent of the Holder of each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or premium, if any, or any installment of interest, if any, on, or any Additional Amounts, if any, with respect to, any Security, or reduce the principal amount thereof or the premium, if any, thereon or the rate (or modify the calculation of such rate) of interest thereon, or reduce the amount payable upon redemption thereof at the option of the Operating Partnership or repayment or repurchase thereof at the option of the Holder, or reduce any Additional Amounts payable with respect to any Security or any Guarantee, or change the obligation of the Operating Partnership to pay Additional Amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and permitted by Section 901(1)) or the obligation of any Guarantor to pay Additional Amounts under any Guarantee, or reduce the amount of the principal of any Original Issue Discount Security that would be due and payable upon acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in bankruptcy pursuant to Section 504, or adversely affect the right of repayment or repurchase at the option of any Holder as contemplated by Article Thirteen, or change the Place of Payment where or the Currency in which the principal of, any premium or interest on, or any Additional Amounts with respect to any Security or any Guarantee 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 repayment or repurchase pursuant to Article Thirteen at the option of the Holder, on or after the date for repayment or repurchase) in each case as such Stated Maturity, Redemption Date or date for repayment or repurchase may, if applicable, be extended in accordance with the terms of such Security, or in the case of any Security which is convertible into or exchangeable for shares of Common Equity or other securities or property, impair the right to institute suit to enforce the right to convert or exchange such Security in accordance with its terms, or release a Guarantor from any of its obligations under a Guarantee except as permitted under this Indenture, or
(2) reduce the percentage in aggregate principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in Section 513 or 1006 of this Indenture, or reduce the requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or Section 1006 except to increase any such percentage or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby, or
(4) make any change that adversely affects the right, if any, to convert or exchange any Security for shares of Common Equity or other securities or property in accordance with its terms.
Other than as set forth above, a supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which shall have been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
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Anything in this Indenture to the contrary notwithstanding, if more than one series of Securities is Outstanding, the Operating Partnership and any Guarantor shall be entitled to enter into a supplemental indenture under this Section 902 with respect to any one or more series of Outstanding Securities without entering into a supplemental indenture with respect to any other series of Outstanding Securities.
It shall not be necessary for any Act of Holders of Securities under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
Section 903 Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trust created by this Indenture, the Trustee shall receive, and (subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in conclusively relying upon, an Officers’ Certificate and an Opinion of Counsel of each of the Operating Partnership and any Guarantor to the effect that the execution of such supplemental indenture is authorized or permitted by this Indenture and that such supplemental indenture has been duly authorized, executed and delivered by, and is a valid, binding and enforceable obligation of, each of the Operating Partnership and any Guarantor, respectively, subject to customary exceptions. 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.
Upon an Operating Partnership Request, accompanied by the Officers’ Certificates and Opinions of Counsel provided for in Section 102 and this Section 903, and, if applicable, upon the filing with the Trustee of evidence of the consent of Holders as aforesaid, the Trustee shall join with the other parties thereto in the execution of a supplemental indenture, subject to the protection afforded to the Trustee by the last sentence of the first paragraph of this Section 903.
Section 904 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 a Security theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
Section 905 Reference in Securities to Supplemental Indentures.
Securities of any series 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 as to any matter provided for in such supplemental indenture. If the Operating Partnership shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Operating Partnership, to any such supplemental indenture may be prepared and executed by the Operating Partnership and authenticated and delivered by the Trustee, upon Operating Partnership Order, in exchange for Outstanding Securities of such series.
Section 906 Conformity with Trust Indenture Act.
Unless the Operating Partnership shall determine, based on an Opinion of Counsel delivered to the Trustee, that the same shall not be required, every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
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ARTICLE TEN
COVENANTS
Section 1001 Payment of Principal, Premium, Interest and Additional Amounts.
The Operating Partnership covenants and agrees that it will duly and punctually pay or cause to be paid when due the principal of (including the Redemption Price upon redemption pursuant to Article Eleven hereof), and premium, if any, and interest on each of the Securities at the places, at the respective times and in the manner provided herein and in the Securities; provided, that the Operating Partnership or Paying Agent may withhold from payments of interest and upon redemption pursuant to Article Three hereof, maturity or otherwise, any amounts the Operating Partnership or Paying Agent is required to withhold by law.
Section 1002 Maintenance of Office or Agency.
The Operating Partnership will maintain an office or agency, where the Securities may be surrendered for registration of transfer or exchange or for presentation for payment or redemption and where notices and demands to or upon the Operating Partnership in respect of the Securities and this Indenture may be served. As of the date of this Indenture, such office shall be the Corporate Trust Office and, at any other time, at such other address as the Trustee may designate from time to time by notice to the Operating Partnership. The Operating Partnership will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency not designated or appointed by the Trustee. If at any time the Operating Partnership 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.
The Operating Partnership may also from time to time designate co-registrars and one or more offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time to time rescind such designations. The Operating Partnership 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.
The Operating Partnership hereby initially designates the Trustee as Paying Agent, Security Registrar and Transfer Agent, and the Corporate Trust Office shall be considered as one such office or agency of the Operating Partnership for each of the aforesaid purposes.
So long as the Trustee is the Security Registrar, the Trustee agrees to mail (or send by electronic transmission), or cause to be mailed, the notices set forth in Section 608(6) hereof. If co-registrars have been appointed in accordance with this Section 1002, the Trustee shall mail such notices only to the Operating Partnership and the Holders of Securities it can identify from its records.
Section 1003 Provisions as to Paying Agent.
(1) If the Operating Partnership shall appoint a Paying Agent other than the Trustee, or if the Trustee shall appoint such a Paying Agent, the Operating Partnership will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section 1003: (a) that it will hold all sums held by it as such agent for the payment of the principal of and premium, if any, or interest on the Securities (whether such sums have been paid to it by the Operating Partnership or by any other obligor on the Securities) in trust for the benefit of the Holders of the Securities; (b) that it will give the Trustee notice of any failure by the Operating Partnership (or by any other obligor on the Securities) to make any payment of the principal of and premium, if any, or interest on the Securities when the same shall be due and payable; and (c) that at any time during the continuance of an Event of Default, upon request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust.
The Operating Partnership shall, on or before each due date of the principal of, premium, if any, or interest on the Securities, deposit with the Paying Agent a sum (in funds which are immediately available on the due date for such payment) sufficient to pay such principal, premium, if any, or interest and (unless such Paying Agent is the Trustee) the Operating Partnership will promptly notify the Trustee of any failure to take such action; provided, that if such deposit is made on the due date, such deposit shall be received by the Paying Agent by 11:00 a.m. New York City time, on such date.
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(2) If the Operating Partnership shall act as its own Paying Agent, it will, on or before each due date of the principal of, premium, if any, or interest on the Securities, set aside, segregate and hold in trust for the benefit of the Holders of the Securities a sum sufficient to pay such principal, premium, if any, and interest so becoming due and will promptly notify the Trustee of any failure to take such action and of any failure by the Operating Partnership (or any other obligor under the Securities) to make any payment of the principal of, premium, if any, or interest on the Securities when the same shall become due and payable.
(3) Anything in this Section 1003 to the contrary notwithstanding, the Operating Partnership may, at any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Operating Partnership or any Paying Agent hereunder as required by this Section 1003, such sums to be held by the Trustee upon the trusts herein contained and upon such payment by the Operating Partnership or any Paying Agent to the Trustee, the Operating Partnership or such Paying Agent shall be released from all further liability with respect to such sums.
The Trustee shall not be responsible for the actions of any other Paying Agents (including the Operating Partnership if acting as its own Paying Agent) and shall have no control of any funds held by such other Paying Agents.
Any money deposited with the Trustee or any Paying Agent, or then held by the Operating Partnership, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Operating Partnership on Operating Partnership Request, or (if then held by the Operating Partnership) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Operating Partnership for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Operating Partnership 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 Operating Partnership cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Operating Partnership.
Section 1004 Additional Amounts.
In the event that the Operating Partnership is required to make the payment of Additional Amounts to Holders of Securities pursuant to this Indenture, the Operating Partnership will provide written notice (“Additional Amounts Notice”) to the Trustee of its obligation to pay Additional Amounts no later than fifteen (15) calendar days prior to the proposed payment date for Additional Amounts, and the Additional Amount Notice shall set forth the amount of Additional Amounts to be paid by the Operating Partnership on such payment date. The Trustee shall not at any time be under any duty or responsibility to any Holder of Securities to determine the Additional Amounts, or with respect to the nature, extent or calculation of the amount of Additional Amounts when made, or with respect to the method employed in such calculation of the Additional Amounts.
Section 1005 Corporate Existence.
Subject to Article Eight, each of the Operating Partnership and any Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect its (i) existence, and (ii) rights (charter and statutory) and franchises; provided, that neither the Operating Partnership nor any Guarantor shall be required to preserve any such right or franchise if the Board of Directors (or any duly authorized committee of that Board of Directors), as applicable, shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Operating Partnership or any Guarantor, as applicable.
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Section 1006 Waiver of Certain Covenants.
The Operating Partnership and any Guarantor may omit in any particular instance to comply with any term, provision or condition set forth in Sections 1005(ii) and 704 with respect to the Securities of any series and, if expressly provided pursuant to Section 301(16), any additional covenants applicable to the Securities of such series if, before the time for such compliance, the Holders of a majority in aggregate principal amount of the Outstanding Securities of such series, by Act of such Holders, either shall waive such compliance in such instance or generally shall have waived compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Operating Partnership and any Guarantor, as applicable and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
Section 1007 Operating Partnership and Guarantor Statement as to Compliance.
Within one hundred twenty (120) calendar days after the end of each fiscal year of the Operating Partnership, the Operating Partnership and, if applicable, any Guarantor, shall deliver to the Trustee a certificate signed by any of the principal executive officer, principal financial officer or principal accounting officer of the Operating Partnership and such Guarantor, stating whether or not the signer has knowledge of any default under this Indenture, and, if so, specifying each default and the nature and the status thereof.
The Operating Partnership will deliver to the Trustee, within thirty (30) calendar days of becoming aware of (i) any default in the performance or observance of any covenant, agreement or condition contained in this Indenture, or (ii) any Event of Default, an Officers’ Certificate specifying with particularity such default or Event of Default and further stating what action the Operating Partnership has taken, is taking or proposes to take with respect thereto.
Any notice required to be given under this Section 1007 shall be delivered to a Responsible Officer of the Trustee at its Corporate Trust Office.
Section 1008 Calculation of Original Issue Discount.
So long as there is any Outstanding Original Issue Discount Security, the Operating Partnership shall file with the Trustee promptly at the end of each calendar year (i) a written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time, each of which the Trustee shall be fully protected in relying upon.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article.
Redemption of Securities of any series at the option of the Operating Partnership as permitted or required by the terms of such Securities shall be made in accordance with the terms of such Securities and (except as otherwise provided herein or pursuant hereto) this Article.
Section 1102 Election to Redeem; Notice to Trustee.
The election of the Operating Partnership to redeem any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Operating Partnership of all of the Outstanding Securities of any series, the Operating Partnership shall, not less than 22 and not more than 60 days prior to the Redemption Date fixed by the Operating Partnership (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed and, in the event that the Operating Partnership shall determine that the Securities of any series to be redeemed shall be selected from Securities of such series having the same issue date, interest rate or interest rate formula, Stated Maturity and other terms (the “Equivalent Terms”), the Operating Partnership shall notify the Trustee of such Equivalent Terms.
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If less than all of the Securities of any series are to be redeemed or if less than all of the Securities of any series with Equivalent Terms are to be redeemed, the Operating Partnership shall, at least seven days prior to giving notice of redemption to the Holders (unless a shorter notice shall be satisfactory to the Trustee and agreed upon in writing by the Trustee), notify the Trustee of such Redemption Date, the principal amount of Securities of such series to be redeemed and, if applicable, the Equivalent Terms.
In the case of any redemption of Securities (A) prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture or (B) pursuant to an election of the Operating Partnership which is subject to a condition specified in the terms of such Securities or elsewhere in this Indenture, the Operating Partnership shall furnish to the Trustee an Officers’ Certificate and Opinion of Counsel evidencing compliance with such restriction or condition.
Section 1103 Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series are to be redeemed or if less than all of the Securities of any series with Equivalent Terms are to be redeemed, the particular Securities to be redeemed shall be selected not less than 15 days and not more than 60 days prior to the Redemption Date by the Trustee from the Outstanding Securities of such series or from the Outstanding Securities of such series with Equivalent Terms, as the case may be, not previously called for redemption, by such method as the Trustee shall deem fair and appropriate, and which may provide for the selection for redemption of portions of the principal amount of Registered Securities of such series; provided, however, that no such partial redemption shall reduce the portion of the principal amount of a Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein or pursuant hereto; provided that if the Securities of such series are represented by one or more global Securities, interests in such global Securities shall be selected for redemption by the Depository in accordance with its standard procedures therefor.
The Trustee shall promptly notify the Operating Partnership and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal of such Securities which has been or is to be redeemed.
Unless otherwise specified in or pursuant to this Indenture or the Securities of any series, if any Security selected for partial redemption is converted or exchanged for Common Equity or other securities or property in part before termination of the conversion or exchange right with respect to the portion of the Security so selected, the converted or exchanged portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities which have been converted or exchanged during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.
Section 1104 Notice of Redemption.
Notice of redemption shall be given by the Operating Partnership in the manner provided in Section 106, not less than 15 nor more than 60 days prior to the Redemption Date, unless a shorter period is specified in the Securities to be redeemed, to the Holders of Securities to be redeemed. Failure to give notice by mailing in the manner herein provided to the Holder of any Registered Securities designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Securities or portions thereof.
Any notice that is mailed to the Holder of any Registered Securities in the manner herein provided shall be conclusively presumed to have been duly given, whether or not such Holder receives the notice.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, or if not then ascertainable, the manner of calculation thereof,
(3) if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the particular Security or Securities to be redeemed,
(4) that, in case any Security is to be redeemed in part only, on and after the Redemption Date, upon surrender of such Security, the Holder of such Security will receive, without charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed,
(5) that, on the Redemption Date, the Redemption Price shall become due and payable upon each such Security or portion thereof to be redeemed, together (if applicable) with accrued and unpaid interest, if any, thereon (subject, if applicable, to the proviso to the first paragraph of Section 1106), and, if applicable, that interest thereon shall cease to accrue on and after said date,
(6) the place or places where such Securities, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and any accrued interest and Additional Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) in the case of Securities of any series that are convertible or exchangeable into shares of Common Equity or other securities or property, the then current conversion or exchange price or rate, the date or dates on which the right to convert or exchange the principal of the Securities of such series to be redeemed will commence or terminate, as applicable, and the place or places where and the Persons to whom such Securities may be surrendered for conversion or exchange,
(9) the CUSIP number, Common Code or ISIN number of such Securities, if any (or any other numbers used by a Depository to identify such Securities), and
(10) if the Redemption Price or any portion thereof shall be payable, at the option of the Operating Partnership or any Holders, in shares of Common Equity, cash or in other securities or property (or a combination thereof), a statement as to whether the Operating Partnership has elected to pay the Redemption Price in shares of Common Equity, cash or in other securities or property (or a combination thereof) and, if applicable, the portion of the Redemption Price that is to be paid in shares of Common Equity, cash or in other securities or property.
Notice of redemption of Securities to be redeemed at the election of the Operating Partnership shall be given by the Operating Partnership or, at the Operating Partnership’s request with seven days prior written notice (or such shorter notice as shall be acceptable to the Trustee), by the Trustee in the name and at the expense of the Operating Partnership, which request shall set forth the information to be contained in such notice of redemption.
Section 1105 Deposit of Redemption Price.
At or prior to 11:00 am (local time in New York City) on any Redemption Date, the Operating Partnership shall deposit, with respect to the Securities of any series called for redemption pursuant to Section 1104, with the Trustee or with a Paying Agent (or, if the Operating Partnership, any Guarantor or any Affiliate of the Operating Partnership or any Guarantor is acting as Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the applicable Currency sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date, unless otherwise specified pursuant to Section 301 for or in the Securities of such series) any accrued interest on and Additional Amounts with respect to, all such Securities or portions thereof which are to be redeemed on that date.
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Section 1106 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, together with (unless otherwise provided with respect to the Securities of such series pursuant to Section 301) accrued and unpaid interest, if any, thereon and from and after such date (unless the Operating Partnership shall default in the payment of the Redemption Price and accrued interest, if any) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Operating Partnership at the Redemption Price, together with, unless otherwise provided in or pursuant to this Indenture, any accrued and unpaid interest thereon and Additional Amounts with respect thereto to but excluding the Redemption Date; provided, however, except as otherwise specified in or pursuant to this Indenture or the Registered Securities of such series, installments of interest on Registered Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the Regular Record Dates therefor according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid, or funds set aside for payment, on the Redemption Date, the principal and any premium, until paid, shall bear interest from the Redemption Date at the rate prescribed therefor in the Security or, if no rate is prescribed therefor in the Security, at the rate of interest, if any, borne by such Security.
Section 1107 Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be surrendered at any Office or Agency for such Security (with, if the Operating Partnership or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Operating Partnership and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing) and the Operating Partnership shall execute and the Trustee shall authenticate and deliver, upon Operating Partnership Order, to the Holder of such Security without service charge, a new Registered Security or Securities of the same series, containing identical terms and provisions, of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. If a Security in global form is so surrendered, the Operating Partnership shall execute, and the Trustee shall authenticate and deliver, upon Operating Partnership Order, to the Depository for such Security in global form as shall be specified in the Operating Partnership Order with respect thereto to the Trustee, without service charge, a new Security in global form in a denomination equal to and in exchange for the unredeemed portion of the principal of the Security in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201 Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise permitted or required in or pursuant to this Indenture or any Security of such series issued pursuant to this Indenture.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of such series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series and this Indenture.
Section 1202 Satisfaction of Sinking Fund Payments with Securities.
The Operating Partnership may, in satisfaction of all or any part of any sinking fund payment with respect to the Securities of any series to be made pursuant to the terms of such Securities (1) deliver Outstanding Securities of such series
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(other than any of such Securities previously called for redemption or any of such Securities in respect of which cash shall have been released to the Operating Partnership), and (2) apply as a credit Securities of such series which have been redeemed either at the election of the Operating Partnership pursuant to the terms of such series of Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities of any series in lieu of cash payments pursuant to this Section 1202, the principal amount of Securities of such series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon Operating Partnership Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall at the written request of the Operating Partnership from time to time pay over and deliver to the Operating Partnership any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Operating Partnership to the Trustee of Securities of that series purchased by the Operating Partnership having an unpaid principal amount equal to the cash payment requested to be released to the Operating Partnership.
Section 1203 Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any series of Securities, the Operating Partnership shall deliver to the Trustee an Officers’ Certificate, which the Trustee shall be entitled to rely upon, specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting of Securities of that series pursuant to Section 1202, the basis for such credit and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Operating Partnership shall thereupon be obligated to pay the amount therein specified. Not less than 60 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Operating Partnership in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301 Applicability of Article.
Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance with the terms of the Securities of such series. The repayment of any principal amount of Securities pursuant to such option of the Holder to require repayment of Securities before their Stated Maturity, for purposes of Section 309, shall not operate as a payment, redemption or satisfaction of the indebtedness represented by such Securities unless and until the Operating Partnership, at its option, shall deliver or surrender the same to the Trustee with a direction that such Securities be cancelled. If specified with respect to the Securities of a series as contemplated by Section 301, in connection with any repayment of Securities, the Operating Partnership may arrange for the purchase of any Securities by an agreement with one or more investment bankers or other purchasers to purchase such Securities by paying to the Holders of such Securities on or before the applicable repayment date an amount not less than the repayment price payable by the Operating Partnership on repayment of such Securities, and the obligation of the Operating Partnership to pay the repayment price of such Securities shall be satisfied and discharged to the extent such payment is so paid by such purchasers.
Unless otherwise expressly stated in this Indenture or pursuant to Section 301 with respect to the Securities of any series or unless the context otherwise requires, all references in this Indenture to the repayment of Securities at the option of the Holders thereof (and all references of like import) shall be deemed to include a reference to the repurchase of Securities at the option of the Holders thereof.
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ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401 Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the determination of any of the rights of, Holders of Securities of any series in which not all of such Securities are denominated in the same Currency or (ii) any distribution to Holders of Securities of any series in which not all of such Securities are denominated in the same Currency, in the absence of any provision to the contrary in or pursuant to this Indenture or the Securities of such series and in accordance with the Depository’s procedures, any amount in respect of any Security denominated in a Currency other than Dollars shall be treated for any such action, determination or distribution as that amount of Dollars that could be obtained for such amount on such reasonable basis of exchange and as of the record date with respect to Registered Securities of such series (if any) for such action, determination or distribution (or, if there shall be no applicable record date, such other date reasonably proximate to the date of such distribution) as the Operating Partnership may specify in a written notice to the Trustee or, in the absence of such written notice, as the Trustee may determine.
Section 1402 Monies of Different Currencies to be Segregated.
The Trustee shall segregate monies, funds and accounts held by the Trustee hereunder in one currency from any monies, funds or accounts in any other currencies, notwithstanding any provision herein which would otherwise permit the Trustee to commingle such accounts.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501 Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other Act provided by this Indenture to be made, given or taken by Holders of Securities of such series.
Section 1502 Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1501, to be held at such time and at such place in The City of New York. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Operating Partnership or any Guarantor (by or pursuant to a Board Resolution) or the Holders of at least 10% in aggregate principal amount of the Outstanding Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1501, by written request setting forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not have mailed notice of or made the first publication of the notice of such meeting within 21 days after receipt of such request (whichever shall be required pursuant to Section 106) or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Operating Partnership, any Guarantor or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place in The City of New York and may call such meeting for such purposes by giving notice thereof as provided in clause (1) of this Section.
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Section 1503 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Operating Partnership, any Guarantor and their respective counsel.
Section 1504 Quorum; Action.
The Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting or duly reconvened meeting of Holders of Securities of such series; provided, however, that if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of a supermajority in aggregate principal amount of the Outstanding Securities of a series, the Persons entitled to vote the specified supermajority in aggregate principal amount of the Outstanding Securities of such series shall constitute a quorum. In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(1), except that such notice need be given only once not less than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an adjourned meeting shall state expressly the percentage, as provided above, of the aggregate principal amount of the Outstanding Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted only by the affirmative vote of the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series; provided, however, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or taken by the Holders of a supermajority in aggregate principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly convened and at which a quorum is present as aforesaid only by the affirmative vote of the Holders of the specified supermajority in aggregate principal amount of the Outstanding Securities of that series; and provided, further, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other Act which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in aggregate principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such lesser specified percentage in aggregate principal amount of the Outstanding Securities of such series.
Any resolution passed or decision taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series, whether or not such Holders were present or represented at the meeting.
Section 1505 Determination of Voting Rights; Conduct and Adjournment of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of such series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.
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(2) The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Operating Partnership, any Guarantor or the Holders of Securities as provided in Section 1502(2), in which case the Operating Partnership, any Guarantor or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of such series represented at the meeting.
(3) At any meeting, each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. If the Securities of such series are issuable in minimum denominations of less than $1,000, then a Holder of such a Security in a principal amount of less than $1,000 shall be entitled to a fraction of one vote which is equal to the fraction that the principal amount of such Security bears to $1,000. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(4) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502 at which a quorum is present may be adjourned from time to time by Persons entitled to vote a majority in aggregate principal amount of the Outstanding Securities of such series represented at the meeting; and the meeting may be held as so adjourned without further notice.
Section 1506 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in triplicate of all votes cast at the meeting. A record, at least in triplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1502 and, if applicable, Section 1504. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to each of the Operating Partnership and any Guarantor, and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
ARTICLE SIXTEEN
GUARANTEE OF SECURITIES
Section 1601 Guarantee.
(a) Each Person who may become a “Guarantor” with respect to any series of Securities to which this Article Sixteen is made applicable, irrevocably and unconditionally guarantees (the “Guarantee”) to each Holder of a Security of such series authenticated and delivered by the Trustee and to the Trustee and its successors and assigns, irrespective of the validity and enforceability of this Indenture, the Securities of such series, the obligations of the Operating Partnership under this Indenture or the Securities of such series or irrespective of restrictions of any kind on the Operating Partnership’s performance of its obligations under the Securities, and waiving all rights of objection and defense arising from the Securities, that: (i) the principal of and premium, if any, and interest on the Securities of such series will be punctually paid in full when due, whether at the Stated Maturity or Interest Payment Date, by acceleration, call for redemption, or otherwise; (ii) all other obligations of the Operating Partnership to the
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Holders of such series or the Trustee under this Indenture or the Securities of such series will be promptly paid in full, all in accordance with the terms of this Indenture and the Securities of such series; and (iii) in case of any extension of time of payment or renewal of any Securities of such series or any of such other obligations thereunder, they will be paid in full when due in accordance with the terms of the extension or renewal, whether at the Stated Maturity or Interest Payment Date, by acceleration, call for redemption, or otherwise. Failing payment when due of any amount so guaranteed for whatever reason, each Guarantor shall be obligated to pay the same before failure so to pay becomes an Event of Default with respect to Securities of any series. If the Operating Partnership defaults in the payment of the principal of or premium, if any, or interest on the Securities of a series so guaranteed when and as the same shall become due, whether at the Stated Maturity or Interest Payment Date, by acceleration, call for redemption, or otherwise, without the necessity of action by the Trustee or any Holder, each Guarantor with respect to such series shall be required to promptly make such payment in full. The obligations of all Guarantors under this Article Sixteen shall be joint and several.
(b) Each Guarantor agrees with respect to Securities of any series that its obligations with regard to this Guarantee shall be as principal and not merely as surety and shall be full, irrevocable and unconditional, irrespective of the validity, regularity or enforceability of the Securities of such series or this Indenture, the absence of any action to enforce the same, any delays in obtaining or realizing upon or failures to obtain or realize upon collateral, the recovery of any judgment against the Operating Partnership, any action to enforce the same or any other circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or a guarantor. Each Guarantor with respect to Securities of any series hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Operating Partnership, any right to require a proceeding first against the Operating Partnership or right to require the prior disposition of the assets of the Operating Partnership to meet its obligations, protest, notice and all demands whatsoever and covenants that this Guarantee will not be discharged except by complete performance of all obligations contained in the Securities of such series and this Indenture as it relates to such series of Securities. Each Guarantee is a guaranty of payment and not of collection. The obligations of any Guarantor under this Guarantee will constitute direct, unsecured and unsubordinated obligations of such Guarantor and any Guarantor undertakes that its obligations hereunder will rank pari passu with all other present or future direct, unsecured and unsubordinated obligations of the Guarantor, save for such obligations as may be mandatorily preferred by law.
(c) Any such Guarantee will be a guarantee of payment and not merely of collection and it shall continue in full force and effect by way of continuing security until all principal, premium, if any, and interest, if any, (including any Additional Amounts required to be paid in accordance with the terms and conditions of the series of Securities so guaranteed) have been paid in full and all other actual or contingent obligations of the Operating Partnership in relation to the series of Securities so guaranteed or under the Indenture have been satisfied in full. Notwithstanding the foregoing, if any payment received by any Holder is, on the subsequent bankruptcy or insolvency of the Operating Partnership, avoided under any applicable laws, including, among others, laws relating to bankruptcy or insolvency, such payment will not be considered as having discharged or diminished the liability of any Guarantor and any such Guarantee will continue to apply as if such payment had at all times remained owing by the Operating Partnership.
(d) If any Holder of Securities of a series or the Trustee is required by any court or otherwise to return to any of the Operating Partnership or a Guarantor with respect to Securities of that series, or any custodian, trustee, or similar official acting in relation to any of the Operating Partnership or a Guarantor, any amount paid by any of the Operating Partnership or a Guarantor to the Trustee or such Holder with respect to Securities of that series, the Guarantee with respect to Securities of that series, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it will not be entitled to any right of subrogation in relation to the Holders of Securities of a series in respect of any obligations guaranteed hereby until payment in full of all obligations of Securities of such series. Each Guarantor further agrees that, as between the Guarantors, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 502 for the purposes of a Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration as to the Operating Partnership of the obligations so guaranteed, and (ii) in the event of any declaration of acceleration of those obligations as provided in Section 502, those obligations (whether or not due and payable) will forthwith become due and payable by the Guarantors with respect to Securities of a series for purposes of the Guarantee.
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(e) Each Guarantor and by its acceptance of a Security issued hereunder each Holder hereby confirms that it is the intention of all such parties that the Guarantee by each Guarantor set forth in Section 1601(a) not constitute a fraudulent transfer or conveyance for purpose of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Federal or state law. To effectuate the foregoing intention, the Holders and all Guarantors hereby irrevocably agree that the obligations of each of the Guarantors under the Guarantee set forth in Section 1601(a) shall be limited to the maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor, and after giving effect to any collections from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under its Guarantee or pursuant to the next succeeding sentence, result in the obligations of such Guarantor under such Guarantee not constituting such a fraudulent transfer or conveyance. Each Guarantor that makes any payment or distribution under Section 1601(a) shall be entitled to a contribution from each other Guarantor equal to its Pro Rata Portion of such payment or distribution. For purposes of the foregoing, the “Pro Rata Portion” of any Guarantor means the percentage of net assets of all Guarantors held by such Guarantor, determined in accordance with GAAP.
(f) It is the intention of the parties that the obligations of the Guarantors shall be in, but not in excess of, the maximum amount permitted by applicable law. Accordingly, if the obligations in respect of the Guarantee would be annulled, avoided or subordinated to the creditors of any Guarantor by a court of competent jurisdiction in a proceeding actually pending before such court as a result of a determination both that such Guarantee was made without fair consideration and, immediately after giving effect thereto, such Guarantor was insolvent or unable to pay its debts as they mature or left with an unreasonably small capital, then the obligations of such Guarantor under such Guarantee shall be reduced by such court if and to the extent such reduction would result in the avoidance of such annulment, avoidance or subordination; provided, however, that any reduction pursuant to this paragraph shall be made in the smallest amount as is strictly necessary to reach such result. For purposes of this paragraph, “fair consideration,” “insolvency,” “unable to pay its debts as they mature,” “unreasonably small capital” and the effective times of reductions, if any, required by this paragraph shall be determined in accordance with applicable law.
(g) If the obligations of any Guarantor are reduced pursuant to Section 1601(e) or 1601(f) above, such reduction shall be applied proportionately with respect to all Securities (of whatever series) guaranteed under Section 1601, in accordance with the respective outstanding principal amount of such Securities so guaranteed (or, if any Securities are Original Issue Discount Securities, the accreted value of such Securities) and being then due upon the acceleration of the payment of such Securities.
Section 1602 Future Guarantors.
Each Person providing a guarantee of any Security of a series pursuant to this Indenture shall execute and deliver a supplemental indenture making such Person a party to this Indenture for the purpose of becoming a Guarantor.
Section 1603 Delivery of Guarantee.
The delivery of any Security of a series by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of the Guarantee set forth in Section 1601 on behalf of each Guarantor for that series.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.
| DUPONT FABROS TECHNOLOGY, L.P., as Issuer By: DuPont Fabros Technology, Inc., its general partner | ||
| By: | /s/ Jeffrey H. Foster | |
| Name: Jeffrey H. Foster | ||
| Title: Chief Financial Officer | ||
| U.S. Bank National Association, as Trustee, Registrar, Paying Agent and Transfer Agent | ||
| By: | /s/ Raymond S. Haverstock | |
| Name: Raymond S. Haverstock | ||
| Title: Vice President | ||
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Exhibit 4.2
DuPont Fabros Technology, L.P.
as Issuer
the Guarantors party hereto
and
U.S. Bank National Association
as Trustee
First Supplemental Indenture
Dated as of June 9, 2015
to Indenture Dated as of
June 9, 2015
5.625% Senior Notes Due 2023
RECITALS
| ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE |
| |||||
| Section 1.01. |
Definitions. |
2 | ||||
| ARTICLE 2 THE NOTES |
| |||||
| Section 2.01. |
Creation of Notes |
26 | ||||
| Section 2.02. |
Form of Notes |
26 | ||||
| Section 2.03. |
Terms and Provisions of Notes. |
26 | ||||
| ARTICLE 3 REDEMPTION; OFFER TO PURCHASE |
| |||||
| Section 3.01. |
Optional Redemption |
27 | ||||
| Section 3.02. |
Optional Redemption upon Equity Offerings |
28 | ||||
| Section 3.03. |
Method and Effect of Redemption |
28 | ||||
| Section 3.04. |
Offer to Purchase |
29 | ||||
| ARTICLE 4 COVENANTS |
| |||||
| Section 4.01. |
Maintenance of Office or Agency |
30 | ||||
| Section 4.02. |
Limitation on Indebtedness. |
31 | ||||
| Section 4.03. |
Maintenance of Total Unencumbered Assets |
35 | ||||
| Section 4.04. |
Limitation on Sale and Leaseback Transactions |
35 | ||||
| Section 4.05. |
Limitation on Restricted Payments |
35 | ||||
| Section 4.06. |
Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries |
41 | ||||
| Section 4.07. |
Limitation on Guarantees by Restricted Subsidiaries |
43 | ||||
| Section 4.08. |
Limitation on Transactions with Affiliates |
44 | ||||
| Section 4.09. |
Limitation on Asset Sales |
45 | ||||
| Section 4.10. |
Repurchase of Notes Upon a Change of Control |
48 | ||||
| Section 4.11. |
SEC Reports and Reports to Holders |
49 | ||||
| Section 4.12. |
Suspension of Covenants |
50 | ||||
| Section 4.13. |
Reports to Trustee |
51 | ||||
| ARTICLE 5 CONSOLIDATION, MERGER AND SALE OF ASSETS |
| |||||
| Section 5.01. |
Applicability of Article Eight of the Base Indenture. |
51 | ||||
| Section 5.02. |
Consolidation, Merger and Sale of Assets by the Operating Partnership |
51 | ||||
| Section 5.03. |
Consolidation, Merger and Sale of Assets by a Guarantor |
53 | ||||
i
| ARTICLE 6 DEFAULT AND REMEDIES |
| |||||
| Section 6.01. |
Applicability of Article Five of the Base Indenture. |
53 | ||||
| Section 6.02. |
Events of Default |
53 | ||||
| Section 6.03. |
Acceleration |
56 | ||||
| Section 6.04. |
Other Remedies |
56 | ||||
| Section 6.05. |
Waiver of Past Defaults |
57 | ||||
| Section 6.06. |
Control by Majority |
57 | ||||
| Section 6.07. |
Limitation on Suits |
57 | ||||
| Section 6.08. |
Rights of Holders to Receive Payment |
57 | ||||
| Section 6.09. |
Collection Suit by Trustee |
58 | ||||
| Section 6.10. |
Trustee May File Proofs of Claim |
58 | ||||
| Section 6.11. |
Priorities |
58 | ||||
| Section 6.12. |
Restoration of Rights and Remedies |
59 | ||||
| Section 6.13. |
Undertaking for Costs |
59 | ||||
| Section 6.14. |
Rights and Remedies Cumulative |
59 | ||||
| Section 6.15. |
Delay or Omission Not Waiver |
59 | ||||
| Section 6.16. |
Waiver of Stay, Extension or Usury Laws |
60 | ||||
| ARTICLE 7 THE TRUSTEE |
| |||||
| Section 7.01. |
General |
60 | ||||
| ARTICLE 8 DEFEASANCE AND DISCHARGE |
| |||||
| Section 8.01. |
Applicability of Article Four of the Base Indenture. |
60 | ||||
| Section 8.02. |
Discharge of Operating Partnership’s Obligations |
61 | ||||
| Section 8.03. |
Legal Defeasance |
62 | ||||
| Section 8.04. |
Covenant Defeasance |
63 | ||||
| Section 8.05. |
Application of Trust Money |
64 | ||||
| Section 8.06. |
Repayment to Operating Partnership |
64 | ||||
| Section 8.07. |
Reinstatement |
64 | ||||
| ARTICLE 9 AMENDMENTS, SUPPLEMENTS AND WAIVERS |
| |||||
| Section 9.01. |
Applicability of Article Nine of the Base Indenture. |
65 | ||||
| Section 9.02. |
Amendments Without Consent of Holders |
65 | ||||
| Section 9.03. |
Amendments With Consent of Holders |
66 | ||||
| Section 9.04. |
Effect of Consent |
67 | ||||
| Section 9.05. |
Trustee’s Rights and Obligations |
67 | ||||
| Section 9.06. |
Conformity With Trust Indenture Act |
67 | ||||
| Section 9.07. |
Payments for Consents |
68 | ||||
ii
| ARTICLE 10 GUARANTEES |
| |||||
| Section 10.01. |
The Guarantees |
68 | ||||
| Section 10.02. |
Limitation on Amount of Guarantee |
68 | ||||
| Section 10.03. |
Execution and Delivery of Guarantee |
68 | ||||
| Section 10.04. |
Release of Guarantee |
68 | ||||
| ARTICLE 11 MISCELLANEOUS |
| |||||
| Section 11.01. |
Execution as Supplemental Indenture |
70 | ||||
| Section 11.02. |
Conflict with Trust Indenture Act. |
70 | ||||
| Section 11.03. |
Governing Law |
70 | ||||
| Section 11.04. |
No Adverse Interpretation of Other Agreements |
70 | ||||
| Section 11.05. |
Successors |
70 | ||||
| Section 11.06. |
Duplicate Originals |
70 | ||||
| Section 11.07. |
Separability |
70 | ||||
| Section 11.08. |
Table of Contents and Headings |
70 | ||||
| Section 11.09. |
No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders |
71 | ||||
| Section 11.10. |
Trustee Not Responsible for Recitals or Issuance of Notes |
71 | ||||
iii
| EXHIBITS | ||
| EXHIBIT A | Form of Note | |
| EXHIBIT B | Form of Supplemental Indenture | |
| EXHIBIT D | DTC Legend | |
iv
FIRST SUPPLEMENTAL INDENTURE, dated as of June 9, 2015, among DuPont Fabros Technology, L.P., a Maryland limited partnership, as the Operating Partnership, the Guarantors party hereto, and U.S. Bank National Association, a national banking association, as Trustee, supplementing the Indenture dated as of June 9, 2015, between the Operating Partnership, the Guarantors and the Trustee (the “Base Indenture” and, as amended and supplemented by this “First Supplemental Indenture,” and as it may be further amended or supplemented from time to time, the “Indenture”).
RECITALS
WHEREAS, the Operating Partnership and the Guarantors have heretofore executed and delivered to the Trustee the Base Indenture to provide for the issuance from time to time of the Operating Partnership’s debentures, notes or other evidences of indebtedness.
WHEREAS, Section 301 of the Base Indenture provides that by means of a supplemental indenture the Operating Partnership may create one or more series of the Operating Partnership’s debt securities and establish the form, terms and provisions thereof.
WHEREAS, the Operating Partnership intends by this First Supplemental Indenture to (i) create a series of the Operating Partnership’s debt securities, in an initial aggregate principal amount equal to $250,000,000, entitled “5.625% Senior Notes due 2023” (the “Notes”) and (ii) establish the form and the terms and provisions of the Notes.
WHEREAS, all acts and things necessary to make the Notes, when executed by the Operating Partnership and the Guarantors and completed, authenticated and delivered by the Trustee as provided in the Base Indenture and this First Supplemental Indenture, the valid and binding obligations of the Operating Partnership and the Guarantors and to constitute these presents a valid and binding supplemental indenture and agreement according to its terms, have been done and performed.
THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH
For and in consideration of the premises and the purchase of the Notes by the Holders thereof, the parties hereto covenant and agree, for the equal and proportionate benefit of all Holders, as follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions. Capitalized terms used but not otherwise defined in this First Supplemental Indenture shall have the meanings ascribed to them in the Base Indenture. For all purposes of the Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article 1 shall have the respective meanings assigned to them in this Article 1 and include the plural as well as the singular and, to the extent applicable, supersede the definitions thereof in the Base Indenture;
(b) all words, terms and phrases defined in the Base Indenture (but not otherwise defined herein) shall have the same meanings as in the Base Indenture; and
(c) in the event that a transaction meets the criteria of more than one category of permitted transactions or listed exceptions, the Operating Partnership, in its sole discretion, may classify such transaction and only be required to include such transaction in one category of permitted transactions or listed exceptions.
“Acquired Indebtedness” means Indebtedness of a Person existing at the time such Person becomes a Restricted Subsidiary or assumed in connection with an Asset Acquisition from such Person by a Restricted Subsidiary whether or not Incurred by such Person in connection with, or in anticipation of, such Person becoming a Restricted Subsidiary or such Asset Acquisition; provided that Indebtedness of such Person that is redeemed, defeased, retired or otherwise repaid at the time of or immediately upon consummation of the transactions by which such Person becomes a Restricted Subsidiary or such Asset Acquisition shall not be Acquired Indebtedness.
“Additional Interest” means additional interest owed to the Holders with respect to the Notes.
“Adjusted Consolidated Net Income” means, for any period, the aggregate net income (or loss) of the Operating Partnership and its Restricted Subsidiaries for such period determined on a consolidated basis in conformity with GAAP (without taking into account Unrestricted Subsidiaries); provided that the following items shall be excluded in computing Adjusted Consolidated Net Income, without duplication:
(1) the net income (or loss) of any Person, other than the Operating Partnership or a Restricted Subsidiary, except to the extent of the amount of dividends or other distributions actually paid to the Operating Partnership or any of its Restricted Subsidiaries by such Person during such period;
2
(2) the net income (or loss) of any Restricted Subsidiary to the extent that the declaration or payment of dividends or similar distributions by such Restricted Subsidiary of such net income is not at the time permitted by the operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to such Restricted Subsidiary;
(3) any after-tax gains or losses attributable to Asset Sales;
(4) any after-tax gains or losses from the extinguishment of debt including gains and losses from the termination of Interest Rate Agreements;
(5) all extraordinary gains and extraordinary losses;
(6) any gain or loss realized as a result of the cumulative effect of a change in accounting principles;
(7) any non-cash goodwill or intangible asset impairment charges or tangible asset impairment charges resulting from the application of Statement of Financial Accounting Standards Nos. 141, 141R, 142, or 144, as applicable; and
(8) all non-cash expenses related to stock-based compensation plans or other non-cash compensation, including stock option non-cash expenses.
“Adjusted Total Assets” means, for any Person, the sum of:
(1) Total Assets for such Person as of the end of the calendar quarter preceding the Transaction Date as set forth on the most recent quarterly or annual consolidated balance sheet of the Operating Partnership and its Restricted Subsidiaries, prepared in conformity with GAAP; and
(2) any increase in Total Assets following the end of such quarter including, without limitation, any increase in Total Assets resulting from the application of the proceeds of any additional Indebtedness.
“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under direct or indirect common control with, such Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as applied to any Person, means the possession, directly
3
or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.
“Applicable Premium” means, with respect to any Note on any redemption date the greater of (i) 1.0% of the principal amount of such Note and (ii) the excess (if any) of (a) the present value at such redemption date of (1) the redemption price of such Note at June 15, 2018, as set forth in Section 3.01 plus (2) all required interest payments due on such Note through June 15, 2018 (excluding accrued but unpaid interest), computed using a discount rate equal to the Treasury Rate on such redemption date plus 50 basis points over (b) the principal amount of such Note.
“Asset Acquisition” means:
(1) an investment by the Operating Partnership or its Restricted Subsidiaries in any other Person pursuant to which such Person shall become a Restricted Subsidiary or shall be merged into or consolidated with the Operating Partnership or any of its Restricted Subsidiaries; or
(2) an acquisition by the Operating Partnership or any of its Restricted Subsidiaries from any other Person that constitutes substantially all of a division or line of business of such Person.
“Asset Disposition” means the sale or other disposition by the Operating Partnership or any of its Restricted Subsidiaries, other than to the Operating Partnership or another Restricted Subsidiary, of:
(1) all or substantially all of the Capital Stock of any Restricted Subsidiary, or
(2) all or substantially all of the assets that constitute a division or line of business of the Operating Partnership or any of its Restricted Subsidiaries.
“Asset Period” has the meaning assigned to such term in Section 4.09.
“Asset Sale” means any sale, transfer or other disposition, including by way of merger, consolidation or Sale and Leaseback Transaction, in one transaction or a series of related transactions by the Operating Partnership or any of its Restricted Subsidiaries to any Person other than the Operating Partnership or any of its Restricted Subsidiaries of any assets or properties consisting of:
(1) all or any of the Capital Stock of any Restricted Subsidiary;
4
(2) all or substantially all of the property and assets of an operating unit or business of the Operating Partnership or any of its Restricted Subsidiaries; or
(3) any other property and assets of the Operating Partnership or any of its Restricted Subsidiaries (other than Capital Stock of a Person that is not a Restricted Subsidiary) and, in each case, that is not governed by Section 5.02;
provided that “Asset Sale” shall not include:
| (a) | sales or other dispositions of property or assets (including leases of real estate assets) in the ordinary course of business of the Operating Partnership or such Restricted Subsidiary; |
| (b) | sales or other dispositions of inventory, receivables and other current assets; |
| (c) | sales, transfers or other dispositions of assets with a Fair Market Value, or involving net proceeds to the Operating Partnership or a Restricted Subsidiary, not in excess of $25 million in any transaction or series of related transactions; |
| (d) | sales or other dispositions of assets for consideration at least equal to the Fair Market Value of the assets sold or disposed of, to the extent that the consideration received would satisfy the requirements set forth in Section 4.09; |
| (e) | the sale or other disposition of cash or Temporary Cash Investments; |
| (f) | dispositions of accounts receivable in connection with the compromise, settlement or collection thereof in the ordinary course of business; |
| (g) | a Restricted Payment or Permitted Investment that is permitted by Section 4.05; |
| (h) | the exchange of assets, provided that (x) the Board of Directors of the Operating Partnership has determined in good faith that the Fair Market Values of the exchanged assets are approximately equal and (y) at least 75% of the consideration for such exchange constitutes assets or other property of a kind useful to or usable by the Operating Partnership or any of its Restricted Subsidiaries in its business as conducted prior to the date of such exchange; provided that any cash consideration shall constitute Net Cash Proceeds subject to Section 4.09; |
5
| (i) | the creation and existence of a Lien not prohibited by the Indenture and the sale or other disposition of assets pursuant to, or as a result of, foreclosure of any such Lien; |
| (j) | the sale or other disposition of damaged, worn out or other obsolete property in the ordinary course of business; or |
| (k) | trade-ins or exchanges of equipment or other fixed assets in the ordinary course of business. |
“Attributable Debt” means, in respect of a Sale and Leaseback Transaction, the present value, discounted at the interest rate implicit in the Sale and Leaseback Transaction, of the total obligations of the lessee for rental payments during the remaining term of the lease in the Sale and Leaseback Transaction.
“Average Life” means at any date of determination with respect to any debt security, the quotient obtained by dividing:
(1) the sum of the products obtained by multiplying:
| (A) | the number of years from such date of determination to the dates of each successive scheduled principal payment of such debt security, and |
| (B) | the amount of such principal payment; by |
(2) the sum of all such principal payments.
“bankruptcy default” means the Events of Default specified in clauses (7) and (8) of Section 6.02.
“Base Indenture” has the meaning assigned to such term in the Preamble.
“Board of Directors” means:
(1) with respect to the Operating Partnership, its board of directors (or any duly authorized committee thereof) or, if the Operating Partnership does not have a board of directors, the board of directors (or any duly authorized committee thereof) of its general partner;
(2) with respect to the Company, its board of directors (or any duly authorized committee thereof); and
(3) with respect to any other Person, (i) if the Person is a corporation, the board of directors (or any duly authorized committee thereof) of the corporation, (ii) if the Person is a partnership, the board of directors (or any duly authorized
6
committee thereof) of the general partner of the partnership, (iii) if the Person is a member managed limited liability company, the Board of Directors (or any duly authorized committee thereof) of its managing member, and (iv) with respect to any other Person, the board or similar body (or in each case any duly authorized committee thereof) of such Person serving a similar function.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of a company to have been duly adopted by the Board of Directors of such company and to be in full force and effect on the date of such certificate, and delivered to the Trustee.
“Capital Stock” means, with respect to any Person, any and all shares, interests, participation or other equivalents (however designated, whether voting or non-voting), including partnership interests, whether general or limited, in the equity of such Person, whether outstanding on the Issue Date or issued thereafter.
“Capitalized Lease” means, as applied to any Person, any lease of any property, whether real, personal or mixed, of which the discounted present value of the rental obligations of such Person as lessee, in conformity with GAAP, is required to be capitalized on the balance sheet of such Person.
“Capitalized Lease Obligations” means the discounted present value of the rental obligations under a Capitalized Lease as reflected on the balance sheet of such Person in accordance with GAAP.
“Change of Control” means such time as:
(1) a “person” or “group” (as such terms are defined in Sections 13(d) and 14(d)(2) of the Exchange Act), other than Lammot J. du Pont, Hossein Fateh or any entities at least 75% of the Voting Stock of which is owned by Lammot J. du Pont and/or Hossein Fateh, becomes the ultimate “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total voting power of the Voting Stock of the Company or, other than by the Company, of the Operating Partnership;
(2) during any period of two consecutive years after the Issue Date, individuals who at the beginning of such period constitute the Board of Directors of the Company or the Operating Partnership (together with any new or replacement directors whose election by the Board of Directors or whose nomination by the Board of Directors for election by the Company’s shareholders was approved by a vote of at least a majority of the members of the Board of Directors then still in office who either were members of the Board of Directors on the Issue Date or whose election or nomination for election was so approved) cease for any reason to constitute a majority of the members of the Board of Directors then in office; or
7
(3) the Company ceases to be the general partner of the Operating Partnership.
“Code” means the Internal Revenue Code of 1986.
“Common Stock” means, with respect to any Person, any and all shares, interests, participations or other equivalents (however designated, whether voting or non-voting) that have no preference on liquidation or with respect to distributions over any other class of Capital Stock, including partnership interests, whether general or limited, of such Person’s equity, whether outstanding on the Issue Date or issued thereafter, including, without limitation, all series and classes of common stock.
“Consolidated Interest Expense” means, for any period, without duplication, the aggregate amount of interest expense, in respect of Indebtedness during such period, all as determined on a consolidated basis (without taking into account Unrestricted Subsidiaries) in conformity with GAAP including, without limitation:
(1) capitalized interest;
(2) (i) amortization of original issue discount with respect to (x) the Notes and (y) any other Indebtedness and (ii) the interest portion of any deferred payment obligation, calculated in accordance with GAAP;
(3) all commissions, discounts and other fees and expenses owed with respect to letters of credit and bankers’ acceptance financing;
(4) the net costs associated with Interest Rate Agreements and Indebtedness that is Guaranteed or secured by assets of the Operating Partnership or any of its Restricted Subsidiaries; and
(5) all but the principal component of rentals in respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid or to be accrued by the Operating Partnership and its Restricted Subsidiaries;
excluding (A) the amount of such interest expense of any Restricted Subsidiary if the net income of such Restricted Subsidiary is excluded in the calculation of Adjusted Consolidated Net Income pursuant to clause (2) of the definition thereof (but only in the same proportion as the net income of such Restricted Subsidiary is excluded from the calculation of Adjusted Consolidated Net Income pursuant to clause (2) of the definition thereof), (B) any premiums, fees and expenses (and any amortization thereof) paid in connection with the incurrence of any Indebtedness, all as determined on a consolidated basis (without taking into account Unrestricted Subsidiaries) in conformity with GAAP, (C) any non-cash interest expense arising from the application of Statement of Financial
8
Accounting Standards No. 133 or the adoption of FASB Staff Position No. APB 14-1, including unrealized gains or losses from Interest Rate Agreements and (D) any after-tax gains or losses from the termination of Interest Rate Agreements.
“Covenant Suspension Event” has the meaning assigned to such term in Section 4.12.
“Currency Agreement” means any foreign exchange contract, currency swap agreement or other similar agreement or arrangement.
“Default” means any event that is, or after notice or passage of time or both would be, an Event of Default.
“Depository” means the depositary of each Global Note, which will initially be DTC.
“Designated Non-cash Consideration” means the Fair Market Value of non-cash consideration received by the Operating Partnership or a Restricted Subsidiary in connection with an Asset Sale that is so designated as Designated Non-cash Consideration, less the amount of cash and Temporary Cash Investments received in connection with a subsequent sale, redemption, payment or collection of, on or with respect to such Designated Non-cash Consideration.
“Disqualified Stock” means any class or series of Capital Stock of any Person that by its terms or otherwise is:
(1) required to be redeemed prior to the Stated Maturity of the Notes;
(2) redeemable at the option of the holder of such class or series of Capital Stock, other than Units, at any time prior to the Stated Maturity of the Notes; or
(3) convertible into or exchangeable for Capital Stock referred to in clause (1) or (2) above or Indebtedness having a scheduled maturity prior to the Stated Maturity of the Notes,
provided that (A) any Capital Stock that would not constitute Disqualified Stock but for provisions thereof giving holders thereof the right to require such Person to repurchase or redeem such Capital Stock upon the occurrence of an “asset sale” or “change of control” occurring prior to the Stated Maturity of the Notes shall not constitute Disqualified Stock if the “asset sale” or “change of control” provisions applicable to such Capital Stock are no more favorable to the holders of such Capital Stock than the provisions contained in Section 4.09 and Section 4.10 and such Capital Stock specifically provides that such Person will not repurchase or redeem any such stock pursuant to such provision prior to the Operating Partnership’s repurchase of the Notes as are required to be repurchased
9
pursuant to Section 4.09 and Section 4.10 and (B) any Capital Stock that would not constitute Disqualified Stock but for customary put and call arrangements between joint venture partners with respect to their Capital Stock in the joint venture shall not constitute Disqualified Stock.
“DTC” means The Depository Trust Operating Partnership, a New York corporation, and its successors.
“DTC Legend” means the legend set forth in Exhibit C.
“EBITDASC” means, for any period, without duplication, Adjusted Consolidated Net Income for such period plus, to the extent such amount was deducted in calculating such Adjusted Consolidated Net Income:
(1) Consolidated Interest Expense, and to the extent not reflected in Consolidated Interest Expense but otherwise deducted in calculating Adjusted Consolidated Net Income, (i) amortization of original issue discount with respect to (x) the Notes and (y) any other Indebtedness Incurred after the Issue Date and (ii) the interest portion of any deferred payment obligation, calculated in accordance with GAAP;
(2) income taxes (other than income taxes (either positive or negative) attributable to extraordinary gains or losses or sales of assets);
(3) depreciation expense;
(4) amortization expense; and
(5) all other non-cash items reducing Adjusted Consolidated Net Income (other than items that will require cash payments and for which an accrual or reserve is, or is required by GAAP to be, made),
less all non-cash items increasing Adjusted Consolidated Net Income (other than straight line rent and below market lease amortization), all as determined on a consolidated basis for the Operating Partnership and its Restricted Subsidiaries in conformity with GAAP; provided that, if any Restricted Subsidiary is not a Wholly Owned Restricted Subsidiary, EBITDASC shall be reduced (to the extent not otherwise reduced in accordance with GAAP) by an amount equal to:
(a) the amount of the Adjusted Consolidated Net Income attributable to such Restricted Subsidiary multiplied by
(b) the percentage ownership interest in the income of such Restricted Subsidiary not owned on the last day of such period by the Operating Partnership or any of its Restricted Subsidiaries.
10
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock).
“Equity Offering” means a public or private offering of Equity Interests (other than Disqualified Stock) of the Operating Partnership or the Company, if such proceeds are contributed as equity to the Operating Partnership.
“Event of Default” has the meaning assigned to such term in Section 6.02.
“Excess Proceeds” has the meaning assigned to such term in Section 4.09.
“Fair Market Value” means the price that would be paid in an arm’s-length transaction under the applicable circumstances between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy; provided that if the value of the transaction exceeds $10 million, such determination will be made by the principal financial officer of the Company, whose determination shall be conclusive.
“First Supplemental Indenture” has the meaning assigned to such term in the Preamble.
“Four Quarter Period” means the then most recent four fiscal quarters prior to the applicable Transaction Date for which financial information is available.
“Funds From Operations” for any period means the consolidated net income of the Operating Partnership and its Restricted Subsidiaries for such period determined in conformity with GAAP (without taking into account Unrestricted Subsidiaries) excluding gains or losses from debt restructurings and sales of depreciable operating property, plus depreciation of real property (including furniture and equipment) and amortization related to real property and other non-cash charges related to real property, after adjustments for unconsolidated partnerships and joint ventures.
“GAAP” means generally accepted accounting principles in the United States of America as in effect as of the Issue Date, including without limitation, as set forth in the Financial Accounting Standards Board’s “Accounting Standards Codification.” All ratios and computations contained or referred to in the Indenture shall be computed in conformity with GAAP applied on a consistent basis.
“Global Note” means a Note in registered global form without interest coupons.
11
“Guarantee” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness of any other Person and, without limiting the generality of the foregoing, any obligation, direct or indirect, contingent or otherwise, of such Person:
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness of such other Person; or
(2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part);
provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.
“Guaranteed Indebtedness” has the meaning set forth in Section 4.07.
“Guarantors” means the Company and the Subsidiary Guarantors, collectively.
“Holder” or “Noteholder” means the registered holder of any Note.
“Incur” means, with respect to any Indebtedness, to incur, create, issue, assume, Guarantee or otherwise become liable for or with respect to, or become responsible for, the payment of, contingently or otherwise, such Indebtedness, including an “Incurrence” of Acquired Indebtedness; provided that neither the accrual of interest nor the accretion of original issue discount shall be considered an Incurrence of Indebtedness.
“Indebtedness” means, with respect to any Person at any date of determination (without duplication):
(1) all indebtedness of such Person for borrowed money;
(2) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) the face amount of letters of credit or other similar instruments (excluding obligations with respect to letters of credit (including trade letters of credit) securing obligations (other than obligations described in (1) or (2) above or (5), (6) or (7) below) entered into in the ordinary course of business of such Person to the extent such letters of credit are not drawn upon or, if drawn upon, to the extent such drawing is reimbursed no later than the third Business Day following receipt by such Person of a demand for reimbursement);
12
(4) all unconditional obligations of such Person to pay the deferred and unpaid purchase price of property or services, which purchase price is due more than six months after the date of placing such property in service or taking delivery and title thereto or the completion of such services, except Trade Payables;
(5) all Capitalized Lease Obligations;
(6) all Indebtedness of other Persons secured by a Lien on any asset of such Person, whether or not such Indebtedness is assumed by such Person; provided that the amount of such Indebtedness shall be the lesser of (A) the Fair Market Value of such asset at that date of determination and (B) the amount of such Indebtedness;
(7) all Indebtedness of other Persons Guaranteed by such Person to the extent such Indebtedness is Guaranteed by such Person; and
(8) to the extent not otherwise included in this definition or the definition of Consolidated Interest Expense, obligations under Currency Agreements and Interest Rate Agreements;
if, and to the extent, any of the preceding items (other than items (3), (6), (7) or (8)) would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP; provided that Indebtedness shall not include any obligations evidenced by bonds, debentures, notes or other similar instruments with respect to which an irrevocable notice of redemption has been delivered to the trustee therefor or the holders thereof.
The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations of the type described above and, with respect to obligations under any Guarantee, the maximum liability upon the occurrence of the contingency giving rise to the obligation; provided that:
(a) the amount outstanding at any time of any Indebtedness issued with original issue discount shall be deemed to be the face amount with respect to such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness at the date of determination in conformity with GAAP; and
(b) Indebtedness shall not include any liability for federal, state, local or other taxes.
“Indenture” has the meaning assigned to such term in the Preamble.
“interest,” in respect of the Notes, unless the context otherwise requires, refers to interest and Additional Interest, if any.
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“Interest Coverage Ratio” means, on any Transaction Date, the ratio of:
(i) the aggregate amount of EBITDASC for the Four Quarter Period; to
(ii) the aggregate Consolidated Interest Expense during such Four Quarter Period.
In making the foregoing calculation,
(1) pro forma effect shall be given to any Indebtedness Incurred or repaid during the period (“Reference Period”) commencing on the first day of the Four Quarter Period and ending on the Transaction Date, in each case as if such Indebtedness had been Incurred or repaid on the first day of such Reference Period;
(2) Consolidated Interest Expense attributable to interest on any Indebtedness (whether existing or being Incurred) computed on a pro forma basis and bearing a floating interest rate shall be computed as if the rate in effect on the Transaction Date (taking into account any Interest Rate Agreement applicable to such Indebtedness if such Interest Rate Agreement has a remaining term in excess of 12 months or, if shorter, at least equal to the remaining term of such Indebtedness) had been the applicable rate for the entire period;
(3) pro forma effect shall be given to Asset Dispositions and Asset Acquisitions (including giving pro forma effect to the application of proceeds of any Asset Disposition) that occur during such Reference Period as if they had occurred and such proceeds had been applied on the first day of such Reference Period; and
(4) pro forma effect shall be given to asset dispositions and asset acquisitions (including giving pro forma effect to the application of proceeds of any asset disposition) that have been made by any Person that has become a Restricted Subsidiary or has been merged with or into the Operating Partnership or any of its Restricted Subsidiaries during such Reference Period and that would have constituted Asset Dispositions or Asset Acquisitions during such Reference Period but subsequent to the end of the related Four Quarter Period had such transactions occurred when such Person was a Restricted Subsidiary as if such asset dispositions or asset acquisitions were Asset Dispositions or Asset Acquisitions and had occurred on the first day of such Reference Period;
provided that to the extent that clause (3) or (4) of this sentence requires that pro forma effect be given to an Asset Acquisition or Asset Disposition, such pro forma calculation shall be based upon the four full fiscal quarters immediately preceding the Transaction Date of the Person, or division or line of business of the Person that is acquired or disposed of to the extent that such financial information is available.
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“Interest Rate Agreement” means any interest rate protection agreement, interest rate future agreement, interest rate option agreement, interest rate swap agreement, interest rate cap agreement, interest rate collar agreement, interest rate hedge agreement, option or future contract or other similar agreement or arrangement with respect to interest rates.
“Interest Payment Date” has the meaning assigned in Section 2.03(b).
“Investment” in any other Person means any direct or indirect advance, loan or other extension of credit (including without limitation by way of Guarantee or similar arrangement, but excluding advances to customers in the ordinary course of business that are, in conformity with GAAP, recorded as accounts receivable on the consolidated balance sheet of the Operating Partnership and its Restricted Subsidiaries, and residual liabilities with respect to assigned leaseholds incurred in the ordinary course of business) or capital contribution to (by means of any transfer of cash or other property (tangible or intangible) to another Person or any payment for property or services solely for the account or use of another Person, or otherwise), or any purchase or acquisition of Capital Stock, bonds, notes, debentures or other similar instruments issued by, such Person and shall include:
(1) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary; and
(2) the Fair Market Value of the Capital Stock (or any other Investment), held by the Operating Partnership or any of its Restricted Subsidiaries of (or in) any Person that has ceased to be a Restricted Subsidiary;
provided that the Fair Market Value of the Investment remaining in any Person that has ceased to be a Restricted Subsidiary shall be deemed not to exceed the aggregate amount of Investments previously made in such Person valued at the time such Investments were made, less the net reduction of such Investments. For purposes of the definition of “Unrestricted Subsidiary” and Section 4.05:
(a) “Investment” shall include the Fair Market Value of the assets (net of liabilities (other than liabilities to the Operating Partnership or any of its Restricted Subsidiaries)) of any Restricted Subsidiary at the time such Restricted Subsidiary is designated an Unrestricted Subsidiary;
(b) the Fair Market Value of the assets (net of liabilities (other than liabilities to the Operating Partnership or any of its Restricted Subsidiaries)) of any Unrestricted Subsidiary at the time that such Unrestricted Subsidiary is designated a Restricted Subsidiary shall be considered a reduction in outstanding Investments; and
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(c) any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer.
“Investment Grade” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.
“Issue Date” means the date on which the Notes are originally issued under the Indenture.
“Leverage Ratio” means, on any date, the ratio of (i) the aggregate amount of, without duplication, Indebtedness of the Operating Partnership and its Restricted Subsidiaries determined on a consolidated basis in accordance with GAAP, to (ii) the aggregate amount of EBITDASC of the Operating Partnership and its Restricted Subsidiaries for the Four Quarter Period, calculated on a pro forma basis in the manner set forth in the definition of “Interest Coverage Ratio.”
“Lien” means any mortgage, deed of trust, pledge, security interest, encumbrance, lien or charge of any kind (including without limitation, any conditional sale or other title retention agreement or lease in the nature thereof).
“Line of Credit” means one or more debt facilities, commercial paper facilities or other debt instruments, indentures or agreements, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against such receivables), letters of credit or other debt obligations, in each case, as amended, restated, modified, renewed, refunded, restructured, supplemented, replaced or refinanced in whole or in part from time to time, including without limitation any amendment increasing the amount of Indebtedness Incurred or available to be borrowed thereunder, extending the maturity of any Indebtedness Incurred thereunder or contemplated thereby or deleting, adding or substituting one or more parties thereto (whether or not such added or substituted parties are banks or other institutional lenders).
“Moody’s” means Moody’s Investors Service, Inc. and its successors.
“Net Cash Proceeds” means:
(1) with respect to any Asset Sale, the proceeds received by the Operating Partnership or any Restricted Subsidiary as a result of such Asset Sale in the form of cash or cash equivalents and including payments in respect of deferred payment obligations (to the extent corresponding to the principal, but not interest, component thereof) when received in the
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form of cash or cash equivalents (except to the extent the assets sold are financed or sold with recourse to the Operating Partnership or any of its Restricted Subsidiaries) and proceeds from the conversion of other property received when converted to cash or cash equivalents, without duplication, net of:
(a) brokerage commissions and other fees and expenses (including fees and expenses of counsel, accountants and investment bankers) related to such Asset Sale;
(b) provisions for all taxes actually paid or payable, as reasonably determined by the Operating Partnership, as a result of such Asset Sale by the Operating Partnership and its Restricted Subsidiaries, taken as a whole, including (without duplication) taxes that would have been payable as a result of such Asset Sale by the Operating Partnership and its Restricted Subsidiaries if the Operating Partnership and each Restricted Subsidiary in which the Operating Partnership owns less than 100% of the interests were taxable as a corporation or as a real estate investment trust, as such term is defined in the Code, for federal, state and local income tax purposes, whichever is greater, and in each case without taking into account any deductions, credits or other tax attributes that are not related to such Asset Sale, and at the highest rate that would be applicable to such entity at such time;
(c) distributions to the Company in order for the Company to pay a capital gain dividend in respect of such Asset Sale;
(d) payments made to repay Indebtedness or any other obligation outstanding at the time of such Asset Sale that either (A) is secured by a Lien on the property or assets sold or (B) is required to be paid as a result of such sale;
(e) all distributions and other payments required to be made to minority interest holders in Restricted Subsidiaries as a result of such Asset Sale;
(f) any portion of the purchase price from such Asset Sale placed in escrow, whether as a reserve for adjustment of the purchase price, for satisfaction of indemnities in respect of such Asset Sale or otherwise in connection with such Asset Sale; provided, however, that upon any release of funds from such escrow, Net Cash Proceeds will be increased by any portion of such funds that are released to the Operating Partnership or any Restricted Subsidiary;
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(g) amounts reserved by the Operating Partnership and its Restricted Subsidiaries against any liabilities associated with such Asset Sale, including without limitation, pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, all as determined on a consolidated basis in conformity with GAAP; and
(h) any payments required under Tax Protection Agreements as a result of such Asset Sale; and
(2) with respect to any issuance or sale of Capital Stock, for purposes of Section 4.05, the proceeds of such issuance or sale received by the Operating Partnership or any Restricted Subsidiary in the form of cash or cash equivalents, and including payments in respect of deferred payment obligations (to the extent corresponding to the principal, but not interest, component thereof) when received in the form of cash or cash equivalents and proceeds from the conversion of other property received when converted to cash or cash equivalents, net of attorney’s fees, accountants’ fees, underwriters’ or placement agents’ fees, discounts or commissions and brokerage, consultant and other fees incurred in connection with such issuance or sale and net of tax paid or payable as a result thereof.
“Notes” has the meaning assigned to such term in the Recitals.
“Note Guarantee” means a Guarantee of the Notes.
“Offer to Purchase” has the meaning set forth in Section 3.04.
“Partnership Agreement” means that certain Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated as of October 24, 2007, by and among the partners named therein.
“Permitted Investment” means:
(1) an Investment in the Operating Partnership or any of its Restricted Subsidiaries or a Person that will, upon the making of such Investment, become a Restricted Subsidiary or be merged or consolidated with or into or transfer or convey all or substantially all its assets to, the Operating Partnership or any of its Restricted Subsidiaries; provided that such person’s primary business is related, ancillary, incidental or complementary to the businesses of the Operating Partnership or any of its Restricted Subsidiaries on the date of such Investment;
(2) cash or Temporary Cash Investments;
(3) one or more Investments in a Permitted Joint Venture in an amount not to exceed 10% of Total Assets at any one time outstanding;
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(4) Investments in Permitted Mortgage Investments in an amount not to exceed 2% of Total Assets at any time outstanding;
(5) payroll, travel and similar advances to cover matters that are expected at the time of such advances ultimately to be treated as expenses in accordance with GAAP;
(6) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 4.09 or any disposition of assets or rights not constituting an Asset Sale by reason of the threshold contained in the definition thereof;
(7) stock, obligations or securities received in connection with the bankruptcy or reorganization of, or settlement of delinquent accounts and disputes with, customers and suppliers, in each case in the ordinary course of business or received in satisfaction of judgment;
(8) any Investment of the Operating Partnership or any of its Restricted Subsidiaries existing on the date of the Indenture, and any extension, modification or renewal of any such Investments, but only to the extent not involving additional advances, contributions or other Investments of cash or other assets or other increases thereof (other than as a result of the accrual or accretion of interest or original issue discount or the issuance of pay-in-kind securities), in each case, pursuant to the terms of such Investment as in effect on the Issue Date;
(9) Guarantees of Indebtedness permitted to be Incurred by the primary obligor pursuant to Section 4.02;
(10) Investments in respect of Currency Agreements and Interest Rate Agreements; and
(11) other Investments in any Person having an aggregate Fair Market Value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken with all other Investments made pursuant to this clause (11), does not exceed 7.5% of Total Assets.
“Permitted Joint Venture” means a Person owned 50% or more by the Operating Partnership and/or any of its Restricted Subsidiaries if (A) such Person is engaged in business related to that of the Operating Partnership, the Company or any Restricted Subsidiary and (B) the Operating Partnership or any Restricted Subsidiary has the right to appoint at least half of the Board of Directors of such Person.
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“Permitted Mortgage Investment” means an investment in a secured note, mortgage, deed of trust, collateralized mortgage obligations, commercial mortgage-backed securities, other secured debt securities, secured debt derivative or other debt instruments, so long as such investment relates directly or indirectly to real property that constitutes or is used as a data center or other property customarily constituting an asset of a real estate investment trust specializing in the ownership, acquisition, development and operation of wholesale data centers.
“Permitted Tax Payments” means, with respect to any year, any distributions to holders of Equity Interests of the Operating Partnership or a Restricted Subsidiary in which the Operating Partnership owns less than 100% of the Equity Interests equal to the amount of federal, state and local income taxes, as reasonably determined by the Operating Partnership, that the Operating Partnership or Restricted Subsidiary would have been required to pay with respect to such year if the Operating Partnership or Restricted Subsidiary were and always had been taxable as a corporation or a real estate investment trust, as such term is defined in the Code, for federal, state and local income tax purposes, whichever is greater, and in each case calculated at the highest marginal rate that would be applicable to such entity with respect to such year.
“Person” means an individual, partnership, corporation, limited liability company, unincorporated organization, trust (including a real estate investment trust) or joint venture, or a governmental agency or political subdivision thereof or other entity.
“Preferred Stock” means, with respect to any Person, any and all shares, interests, participation or other equivalents (however designated, whether voting or non-voting) that have a preference on liquidation or with respect to distributions over any other class of Capital Stock, including preferred partnership interests, whether general or limited, or such Person’s preferred or preference stock, whether outstanding on the Issue Date or issued thereafter, including, without limitation, all series and classes of such preferred or preference stock.
“principal” of any Indebtedness means the principal amount of such Indebtedness, (or if such Indebtedness was issued with original issue discount, the face amount of such Indebtedness less the remaining unamortized portion of the original issue discount of such Indebtedness), together with, unless the context otherwise indicates, any premium then payable on such Indebtedness.
“Rating Agencies” means S&P and Moody’s; provided that if either S&P or Moody’s (or both) shall cease issuing a rating on the Notes for reasons outside the control of the Operating Partnership, the Operating Partnership may select a nationally recognized statistical rating agency to substitute for S&P or Moody’s (or both).
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“Reference Period” has the meaning set forth in the definition of “Interest Coverage Ratio”.
“Regular Record Date” has the meaning assigned to such term in Section 2.03(b).
“Reinstatement Date” has the meaning set forth in Section 4.12.
“Restricted Payment” has the meaning assigned to such term in Section 4.05.
“Restricted Subsidiary” means any Subsidiary of the Operating Partnership other than an Unrestricted Subsidiary.
“Sale and Leaseback Transaction” means, with respect to any Person, an arrangement whereby such Person enters into a lease of property previously transferred by such Person to the lessor.
“Secured Indebtedness” means any Indebtedness secured by a Lien upon the property or other assets of the Operating Partnership or any of its Restricted Subsidiaries.
“Significant Subsidiary” means, at any determination date, any Restricted Subsidiary that, together with its Subsidiaries:
(1) for the most recent fiscal year of the Operating Partnership, accounted for more than 10% of the consolidated revenues of the Operating Partnership and its Restricted Subsidiaries; or
(2) as of the end of such fiscal year, was the owner of more than 10% of the consolidated assets of the Operating Partnership and its Restricted Subsidiaries, all as set forth in the most recently available consolidated financial statements thereof for such fiscal year.
“S&P” means Standard & Poor’s and its successors.
“Stated Maturity” means:
(1) with respect to any debt security, the date specified in such debt security as the fixed date on which the final installment of principal of such debt security is due and payable; and
(2) with respect to any scheduled installment of principal of or interest on any debt security, the date specified in such debt security as the fixed date on which such installment is due and payable.
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“Subsidiary” means, with respect to any Person, any corporation, association or other business entity of which more than 50% of the voting power of the outstanding Voting Stock is owned, directly or indirectly, by such Person and/or one or more other Subsidiaries of such Person and the accounts of which would be consolidated with those of such Person in its consolidated financial statements in accordance with GAAP, if such statements were prepared as of such date.
“Subsidiary Debt” means all unsecured Indebtedness of which a non-Guarantor Restricted Subsidiary is the obligor.
“Subsidiary Guarantee” means a Guarantee by each Subsidiary Guarantor for payment of the Notes by such Subsidiary Guarantor.
“Subsidiary Guarantor” means each of the Subsidiary Guarantors identified as such on the signature page to the Indenture and thereafter any other Restricted Subsidiary that executes a Subsidiary Guarantee in compliance with Section 4.07, but in each case excluding any Persons whose guarantees have been released pursuant to the terms of the Indenture.
“Suspension Period” has the meaning set forth in Section 4.12.
“Tax Protection Agreement” means that certain Tax Protection Agreement, dated as of October 24, 2007, by and among the Company, the Operating Partnership, Safari Ventures LLC, Rhino Interests LLC, Quill Ventures LLC, Lemur Ventures LLC, Meerkat Interests LLC and Grizzly Interests LLC.
“Temporary Cash Investment” means any of the following:
(1) direct obligations of the United States of America or any agency thereof or obligations fully and unconditionally guaranteed by the United States of America or any agency thereof;
(2) time deposit accounts, certificates of deposit and money market deposits maturing within 180 days of the date of acquisition thereof issued by a bank or trust company which is organized under the laws of the United States of America, or any state thereof, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $50 million and has outstanding debt which is rated “A” (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Section 3(a)(62) under the Exchange Act) or any money-market fund sponsored by a registered broker dealer or mutual fund distributor;
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(3) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clause (1) above entered into with a bank meeting the qualifications described in clause (2) above;
(4) commercial paper, maturing not more than 90 days after the date of acquisition, issued by a corporation (other than an Affiliate of the Operating Partnership) organized and in existence under the laws of the United States of America or any state of the United States of America with a rating at the time as of which any investment therein is made of “P-2” (or higher) according to Moody’s or “A-2” (or higher) according to S&P;
(5) securities with maturities of six months or less from the date of acquisition issued or fully and unconditionally guaranteed by any state, commonwealth or territory of the United States of America, or by any political subdivision or taxing authority thereof, and rated at least “A” by S&P or Moody’s;
(6) money market funds at least 95% of the assets of which constitute Temporary Cash Investments of the kinds described in clauses (1) through (5) of this definition;
(7) repurchase obligations of any commercial bank organized under the laws of the United States of America or any state thereof having capital and surplus aggregating at least $500.0 million, having a term of not more than 30 days, with respect to securities referred to in clause (2) of this definition; and
(8) instruments equivalent to those referred to in clauses (1) to (7) above denominated in euro or any other foreign currency comparable in credit quality and tenor to those referred to above and customarily used by corporations for cash management purposes in any jurisdiction outside the United States to the extent reasonably required in connection with any business conducted by a Restricted Subsidiary organized in such jurisdiction.
“Total Assets” means the sum of:
(1) Undepreciated Real Estate Assets; and
(2) all other assets of the Operating Partnership and its Restricted Subsidiaries on a consolidated basis determined in conformity with GAAP (but excluding intangibles).
“Total Unencumbered Assets” as of any date means the sum of:
(1) those Undepreciated Real Estate Assets, excluding any Undepreciated Real Estate Assets of a non-Guarantor Subsidiary, not securing any portion of Secured Indebtedness; and
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(2) all other assets (but excluding intangibles) of the Operating Partnership and the Subsidiary Guarantors not securing any portion of Secured Indebtedness determined on a consolidated basis in accordance with GAAP but excluding any other assets (including intangibles) of a non-Guarantor Subsidiary.
“Trade Payables” means, with respect to any Person, any accounts payable or any other Indebtedness or monetary obligation to trade creditors created, assumed or Guaranteed by such Person or any of its Subsidiaries arising in the ordinary course of business in connection with the acquisition of goods or services.
“Transaction Date” means, with respect to the Incurrence of any Indebtedness by the Operating Partnership or any of its Restricted Subsidiaries, the date such Indebtedness is to be Incurred, with respect to any Restricted Payment, the date such Restricted Payment is to be made, and with respect to any transaction described in Article 5, the day on which such transaction is to be consummated.
“Treasury Rate” means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two Business Days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the redemption date to June 15, 2018; provided that if the period from the redemption date to such date is not equal to the constant maturity of a United States Treasury security for which a yield is given, the Treasury yield shall be obtained by linear interpolation (calculated to the nearest one-twelfth of a year) from the yields of the nearest United States Treasury securities for which such yields are given, except that if the period from the redemption date to such date is less than one year, the weekly average yield on actually traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Undepreciated Real Estate Assets” means, as of any date, the gross book value of real estate assets of the Operating Partnership and its Restricted Subsidiaries on such date, before depreciation and amortization of such real estate assets, determined on a consolidated basis in conformity with GAAP.
“U.S. Government Obligations” means obligations issued or directly and fully guaranteed or insured by the United States of America or by any agent or instrumentality thereof, provided that the full faith and credit of the United States of America is pledged in support thereof.
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“Units” means the limited partnership units of the Operating Partnership, that by their terms are redeemable at the option of the holder thereof and that, if so redeemed, at the election of the Company are redeemable for cash or Common Stock of the Company.
“Unrestricted Subsidiary” means
(1) any Subsidiary of the Operating Partnership that at the time of determination shall be designated an Unrestricted Subsidiary by the Board of Directors in the manner provided below; and
(2) any Subsidiary of an Unrestricted Subsidiary.
The Board of Directors of the Operating Partnership may designate any Restricted Subsidiary (including any newly acquired or newly formed Subsidiary of the Operating Partnership) to be an Unrestricted Subsidiary unless such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any property of, the Operating Partnership or any of its Restricted Subsidiaries (other than Capital Stock of any Subsidiaries of such Subsidiary); provided that:
(a) any Guarantee by the Operating Partnership or any of its Restricted Subsidiaries of any Indebtedness of the Subsidiary being so designated shall be deemed an “Incurrence” of such Indebtedness and an “Investment” by the Operating Partnership or its Restricted Subsidiary at the time of such designation;
(b) either (i) the Subsidiary to be so designated has total assets of $1,000 or less or (ii) if such Subsidiary has assets greater than $1,000, such designation would be permitted under Section 4.05; and
(c) if applicable, the Incurrence of Indebtedness and the Investment referred to in (a) of this proviso would be permitted under Section 4.02 and Section 4.05.
The Board of Directors of the Operating Partnership may designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that:
(A) no Default or Event of Default shall have occurred and be continuing at the time of or after giving effect to such designation; and
(B) all Liens and Indebtedness of such Unrestricted Subsidiary outstanding immediately after such designation would, if Incurred at such time, have been permitted to be Incurred (and shall be deemed to have been Incurred) for all purposes of the Indenture.
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Any such designation by the Board of Directors shall be evidenced to the Trustee by promptly filing with the Trustee a copy of the Board Resolution giving effect to such designation and an Officers’ Certificate certifying that such designation complied with the foregoing provisions.
“Unsecured Indebtedness” means any Indebtedness of the Operating Partnership or any of its Restricted Subsidiaries that is not Secured Indebtedness.
“Voting Stock” means with respect to any Person, Capital Stock of any class or kind ordinarily having the power to vote for the election of directors, managers or other voting members of the governing body of such Person.
“Wholly Owned” means, with respect to any Subsidiary of any Person, the ownership of all of the outstanding Capital Stock of such Subsidiary (other than any director’s qualifying shares or Investments by individuals mandated by applicable law) by such Person or one or more Wholly Owned Subsidiaries of such Person.
ARTICLE 2
THE NOTES
Section 2.01. Creation of Notes. In accordance with Section 301 of the Base Indenture, the Operating Partnership hereby creates the Notes as a separate series of its debt securities, entitled “5.625% Senior Notes due 2023,” issued pursuant to the Indenture. The Notes shall initially be limited to an aggregate principal amount equal to $250,000,000, subject to the exceptions set forth in Section 301(2) of the Base Indenture and Section 2.03(e) hereof.
Section 2.02. Form of Notes. The Notes will be issued in the form of one or more permanent fully registered global securities (the “Global Note”) that will be deposited with, or on behalf of the Depository, and registered in the name of the Depository or its nominee, as the case may be, subject to Section 305 of the Base Indenture. So long as the Depository, or its nominee, is the registered owner of the Global Note, the Depository or its nominee, as the case may be, will be considered the sole Holder of the Notes represented by the Global Note for all purposes under the Indenture.
Section 2.03. Terms and Provisions of Notes. The Notes shall be governed by all of the terms and provisions of the Base Indenture, as supplemented by this First Supplemental Indenture, and in particular, the following provisions shall be terms of the Notes:
(a) The Notes will be issued only in fully registered form, without coupons, in denominations of $2,000 of principal amount and any higher integral multiple of $1,000. Each Note shall be dated the date of its authentication and shall bear interest from the date specified on the face of the form of Note attached as Exhibit A hereto.
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(b) All payments of principal, premium, if any, and interest in respect of the Global Notes will be made by the Operating Partnership in immediately available funds to the Depository or its nominee, as the case may be, as the Holder of each of the Global Notes. The notes will mature on June 15, 2023. The notes will bear interest from and after June 9, 2015 at a rate of 5.625% per annum. Interest on the Notes will be payable semi-annually in cash on each June 15 and December 15, commencing December 15, 2015 (each, an “Interest Payment Date”), to the persons who are registered Holders at the close of business on June 1 and December 1 immediately preceding the applicable Interest Payment Date (each, a “Regular Record Date”). Interest on the notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including June 9, 2015.
(c) There shall be no sinking fund payments for the Notes.
(d) The Operating Partnership initially appoints DTC to act as Depository with respect to the Global Notes.
(e) The Operating Partnership may, from time to time, without the consent of the Holders of the Notes, increase the principal amount of the Notes by issuing additional Notes in the future on the same terms and conditions, except for any difference in the issue price, issue date, interest accrued prior to the issue date of the additional Notes, and, if applicable, the first Interest Payment Date and the initial interest accrual date, and with the same CUSIP number as the existing Notes so long as such additional Notes are fungible for U.S. federal income tax purposes with the existing Notes.
ARTICLE 3
REDEMPTION; OFFER TO PURCHASE
Section 3.01. Optional Redemption. The Notes will be redeemable at the option of the Operating Partnership, in whole or in part, at any time, and from time to time, on and after June 15, 2018 at the following redemption prices (expressed as percentages of the principal amount thereof) if redeemed during the 12-month period commencing June 15 of the years indicated below, in each case together with accrued and unpaid interest and Additional Interest, if any, to, but not including, the date of redemption:
| Year |
Redemption Price |
|||
| 2018 |
104.219 | % | ||
| 2019 |
102.813 | % | ||
| 2020 |
101.406 | % | ||
| 2021 and thereafter |
100.000 | % | ||
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At any time prior to June 15, 2018, the Operating Partnership may redeem the Notes, in whole or in part, on not less than 30 nor more than 60 days’ prior notice, by paying a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus the Applicable Premium as of, and accrued and unpaid interest, if any, to, but not including, the applicable redemption date (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date). The Trustee shall have no obligation to calculate either the Applicable Premium or the Treasury Rate used in the calculation of the Applicable Premium.
Section 3.02. Optional Redemption upon Equity Offerings. At any time, or from time to time, on or prior to June 15, 2018, the Operating Partnership may, at its option, use the net cash proceeds of one or more Equity Offerings to redeem up to 35% of the principal amount of the Notes at a redemption price of 105.625% of the principal amount thereof, together with accrued and unpaid interest and Additional Interest, if any, to, but not including, the date of redemption; provided that:
(1) at least 65% of the principal amount of the Notes originally issued under the Indenture on the Issue Date remain outstanding immediately after such redemption; and
(2) the Operating Partnership makes such redemption not more than 90 days after the consummation of any such Equity Offering.
Section 3.03. Method and Effect of Redemption. Section 1103 of the Base Indenture is hereby amended and restated in full, with respect to the Notes, to read as follows:
“In the event that the Operating Partnership chooses to redeem less than all of the Notes, selection of the Notes for redemption will be made by the Trustee either:
(1) in compliance with the requirements of the principal national securities exchange, if any, on which the Notes are listed; or,
(2) on a pro rata basis, by lot or by such method as the Trustee shall deem fair and appropriate;
subject, in each case, to DTC procedures for Global Notes where the Depositary is DTC.
No Notes of a principal amount of $2,000 or less shall be redeemed in part. The Trustee will notify the Operating Partnership promptly of the Notes or portions of Notes to be called for redemption. If a partial redemption is made
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with the proceeds of an Equity Offering, the Trustee will select the Notes only on a pro rata basis or on as nearly a pro rata basis as is practicable (subject to DTC procedures) unless such method is otherwise prohibited. Notice of redemption will be delivered by the Operating Partnership, or at the Operating Partnership’s request, by the Trustee, in the name and expense of the Operating Partnership, at least 30 but not more than 60 days before the redemption date to each Holder of Notes to be redeemed at its registered address; provided, that at least 45 days notice must be provided to the Trustee, unless a shorter period is agreed to in advance by the Trustee. Unless the Operating Partnership defaults in the payment of the redemption price, on and after the redemption date, interest will cease to accrue on Notes or portions thereof called for redemption.”
Section 3.04. Offer to Purchase. This section sets out rules governing Offers to Purchase made pursuant to Section 4.09 and Section 4.10. “Offer to Purchase” means an offer to purchase Notes by the Operating Partnership, from the Holders commenced by mailing a notice to the Trustee and each Holder stating:
(1) the covenant pursuant to which the offer is being made and that all Notes validly tendered will be accepted for payment on a pro rata basis;
(2) the purchase price and the date of purchase (which shall be a Business Day no earlier than 30 days nor later than 60 days from the date such notice is mailed) (“Payment Date”);
(3) that any Note not tendered will continue to accrue interest pursuant to its terms;
(4) that, unless the Operating Partnership defaults in the payment of the purchase price, any Note accepted for payment pursuant to the Offer to Purchase shall cease to accrue interest on and after the Payment Date;
(5) that Holders electing to have a Note purchased pursuant to the Offer to Purchase will be required to surrender the Note, together with the form entitled “Option of the Holder to Elect Purchase” on the reverse side of the Note completed, to the Paying Agent at the address specified in the notice prior to the close of business on the Business Day immediately preceding the Payment Date;
(6) that Holders will be entitled to withdraw their election if the Payment Agent receives, not later than the close of business on the third Business Day immediately preceding the Payment Date, a facsimile transmission or letter setting forth the name of such Holder, the principal amount of Notes delivered for purchase and a statement that such Holder is withdrawing his election to have such Notes purchased; and
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(7) that Holders whose Notes are being purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered; provided that each Note purchased and each new Note issued shall be in a principal amount of $2,000 and any higher integral multiple of $1,000 thereof.
On the Payment Date, in connection with an Offer to Purchase, the Operating Partnership shall
| • | accept for payment on a pro rata basis Notes or portions thereof tendered pursuant to an Offer to Purchase; |
| • | deposit with the Paying Agent money sufficient to pay the purchase price of all Notes or portions thereof so accepted; and |
| • | promptly thereafter deliver, or cause to be delivered, to the Trustee all Notes or portions thereof so accepted together with an Officers’ Certificate specifying the Notes or portions thereof accepted for payment by the Operating Partnership. |
The Trustee shall not have any duty to determine the amount to be deposited in connection with an Offer to Purchase.
The Paying Agent shall promptly mail to the Holders of Notes so accepted payment in an amount equal to the purchase price, and the Trustee shall promptly authenticate and mail to such Holders a new Note equal in principal amount to any unpurchased portion of any Note surrendered; provided that each Note purchased and each new Note issued shall be in a principal amount of $2,000 and any higher integral multiple of $1,000. The Operating Partnership shall publicly announce the results of an Offer to Purchase as soon as practicable after the Payment Date. The Operating Partnership shall comply with Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable, in the event that the Operating Partnership is required to repurchase Notes pursuant to an Offer to Purchase.
ARTICLE 4
COVENANTS
Section 4.01. Maintenance of Office or Agency. Section 1002 of the Base Indenture is hereby amended and restated in full, with respect to the Notes, to read as follows:
“The Operating Partnership will maintain in the Borough of Manhattan, the City of New York, an office or agency where Notes may be surrendered for registration of transfer or exchange or for presentation for payment and where notices and demands to or upon the Operating
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Partnership in respect of the Notes and the Indenture may be served. The Operating Partnership hereby initially designates the office of the Trustee located at 100 Wall Street, Suite 1600, New York, NY 10005 as such office of the Operating Partnership. The Operating Partnership 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 Operating Partnership fails to maintain any such required office or agency or fails to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served to the Trustee.
The Operating Partnership may also from time to time designate one or more other offices or agencies where the Notes may be surrendered or presented for any of such purposes and may from time to time rescind such designations. The Operating Partnership 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 4.02. Limitation on Indebtedness.
(1) The Operating Partnership will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness if, immediately after giving effect to the Incurrence of such additional Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Indebtedness of the Operating Partnership and its Restricted Subsidiaries on a consolidated basis determined in accordance with GAAP would be greater than 60% of Adjusted Total Assets.
(2) The Operating Partnership will not, and will not permit any of its Restricted Subsidiaries to, Incur any Subsidiary Debt or any Secured Indebtedness if, immediately after giving effect to the Incurrence of such additional Subsidiary Debt or Secured Indebtedness and the receipt and application of the proceeds therefrom, the aggregate principal amount of all outstanding Subsidiary Debt and Secured Indebtedness of the Operating Partnership and its Restricted Subsidiaries on a consolidated basis would be greater than 40% of Adjusted Total Assets.
(3) The Operating Partnership will not, and will not permit any of its Restricted Subsidiaries to, Incur any Indebtedness; provided that the Operating Partnership or any Restricted Subsidiary may Incur Indebtedness if, immediately after giving effect to the Incurrence of such Indebtedness and the receipt and application of the proceeds therefrom, the Interest Coverage Ratio of the Operating Partnership and its Restricted Subsidiaries on a consolidated basis would be at least 2.0 to 1.0.
(4) Notwithstanding paragraphs (1), (2) or (3), the Operating Partnership or any of its Restricted Subsidiaries may Incur each and all of the following:
(A) Indebtedness, Incurred after the Issue Date, outstanding under any Line of Credit at any time in an aggregate principal amount not to exceed $800 million, less any amount of such Indebtedness under any Line of Credit permanently repaid as provided under Section 4.09;
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(B) Indebtedness owed to:
| (i) | the Operating Partnership or a Guarantor evidenced by an unsubordinated promissory note; or |
| (ii) | any other Restricted Subsidiary, provided that if the Operating Partnership or any Guarantor is an obligor, the Indebtedness is subordinated to the Notes; |
provided that any event which results in any such Restricted Subsidiary ceasing to be a Restricted Subsidiary or any subsequent transfer of such Indebtedness (other than to the Operating Partnership or any other Restricted Subsidiary) shall be deemed, in each case, to constitute an Incurrence of such Indebtedness not permitted by this clause (B);
(C) Indebtedness outstanding as of the Issue Date (other than Indebtedness pursuant to clause (A) of this paragraph (4));
(D) Indebtedness issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease, discharge or refund such outstanding Indebtedness (other than Indebtedness Incurred under clause (A), (B), (E), (H), and (I) of this paragraph (4)) and any refinancings thereof in an amount not to exceed the amount so refinanced or refunded (plus premiums, accrued interest, fees and expenses); provided that Indebtedness the proceeds of which are used to refinance or refund Indebtedness that ranks subordinate in right of payment to, the Notes shall be permitted under this clause (D) only if:
| (i) | such new Indebtedness, by its terms or by the terms of any agreement or instrument pursuant to which such new Indebtedness is issued or remains outstanding, is expressly made subordinate in right of payment to the Notes at least to the extent that the Indebtedness to be refinanced is subordinated to the Notes; and |
| (ii) | such new Indebtedness, determined as of the date of Incurrence of such new Indebtedness, does not mature prior to the Stated Maturity of the Indebtedness to be refinanced or refunded, and the Average Life of such new Indebtedness is at least equal to the remaining Average Life of the Indebtedness to be refinanced or refunded; and |
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provided, further that in no event may Indebtedness of the Operating Partnership or a Subsidiary Guarantor that ranks equally with or subordinate in right of payment to the Notes be refinanced by means of any Indebtedness of any Restricted Subsidiary that is not a Subsidiary Guarantor pursuant to this clause (D);
(E) Indebtedness:
| (i) | in respect of performance, surety or appeal bonds provided in the ordinary course of business, |
| (ii) | constituting reimbursement obligations with respect to letters of credit in respect of workers’ compensation claims, unemployment or other insurance or self-insurance obligations or other Indebtedness with respect to reimbursement type obligations regarding workers’ compensation claims, or self-insurance obligations; provided that upon the drawing of such letters of credit or the Incurrence of such Indebtedness, such obligations are reimbursed within 30 days following such drawing or Incurrence; |
| (iii) | arising from the honoring by a bank or other financial institution of a check, draft or similar instrument drawn against insufficient funds in the ordinary course of business; provided that such Indebtedness is extinguished within 30 days of Incurrence; |
| (iv) | under Currency Agreements and Interest Rate Agreements; provided that such agreements (i) are designed solely to protect the Operating Partnership or any of its Restricted Subsidiaries against fluctuations in foreign currency exchange rates or interest rates and (ii) do not increase the Indebtedness of the obligor outstanding at any time other than as a result of fluctuations in foreign currency exchange rates or interest rates or by reason of fees, indemnities and compensation payable thereunder, and |
| (v) | arising from agreements providing for indemnification, adjustment of purchase price or similar obligations, or from Guarantees or letters of credit, surety bonds or performance bonds securing any obligations of the Operating Partnership or any of its Restricted Subsidiaries pursuant to such agreements, in any case Incurred in connection with the disposition of any |
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| business, assets or Restricted Subsidiary (other than Guarantees of Indebtedness Incurred by any Person acquiring all or any portion of such business, assets or Restricted Subsidiary for the purpose of financing such acquisition), in a principal amount not to exceed the gross proceeds actually received by the Operating Partnership or any of its Restricted Subsidiaries on a consolidated basis in connection with such disposition; |
| (F) | Indebtedness including Capital Leases, mortgage financings or purchase money obligations, Incurred after the Issue Date and no later than 365 days after the date of purchase or completion of construction for the purpose of financing all or any part of the purchase price or cost of the design, construction, installation, repair or improvement of property, plant or equipment or other fixed or capital assets, provided that the principal amount of any Indebtedness Incurred pursuant to this clause (F), including all refinancing Indebtedness Incurred to refund, refinance or replace any Indebtedness Incurred pursuant to this clause, may not exceed 7.5% of Total Assets in the aggregate at any time outstanding; |
| (G) | Indebtedness of the Operating Partnership to the extent the net proceeds thereof are promptly: |
| (i) | used to purchase Notes tendered in an Offer to Purchase made as a result of a Change of Control; or |
| (ii) | used to redeem all the Notes as described above pursuant to Section 3.01; |
| deposited | to defease or discharge the Notes pursuant to Section 8.01, Section 8.03 or Section 8.04; |
(H) Guarantees of the Notes and Guarantees of Indebtedness of the Operating Partnership or any Guarantor by any of its Restricted Subsidiaries provided the guarantee of such Indebtedness is permitted by and made in accordance with Section 4.07;
(I) Additional Indebtedness, Incurred after the Issue Date, of the Operating Partnership and its Restricted Subsidiaries not to exceed 7.5% of Total Assets in the aggregate at any time outstanding; and
(J) Indebtedness represented by the Notes, the Guarantees and the Indenture in the principal amount of Notes to be issued on the Issue Date.
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(5) Notwithstanding any other provision of this Section 4.02, the maximum amount of Indebtedness that the Operating Partnership or any of its Restricted Subsidiaries may Incur pursuant to this Section 4.02 shall not be deemed to be exceeded, with respect to any outstanding Indebtedness due solely to the result of fluctuations in the exchange rates of currencies.
(6) For purposes of determining any particular amount of Indebtedness under this Section 4.02, Guarantees, Liens or obligations with respect to letters of credit supporting Indebtedness otherwise included in the determination of such particular amount shall not be included.
For purposes of determining compliance with this Section 4.02, in the event that an item of Indebtedness meets the criteria of more than one of the types of Indebtedness described in the above clauses, the Operating Partnership, in its sole discretion, shall classify such item of Indebtedness and only be required to include the amount and type of such Indebtedness in one of such clauses; provided that the Operating Partnership may divide and classify an item of Indebtedness in one or more of the types of Indebtedness and may later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 4.02.
Section 4.03. Maintenance of Total Unencumbered Assets. The Operating Partnership and the Subsidiary Guarantors will maintain Total Unencumbered Assets of not less than 150% of the aggregate outstanding principal amount of the Unsecured Indebtedness of the Operating Partnership and the Subsidiary Guarantors on a consolidated basis.
Section 4.04. Limitation on Sale and Leaseback Transactions. The Operating Partnership will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction with respect to any property or asset unless:
(1) the Operating Partnership or the Restricted Subsidiary would be entitled to Incur Indebtedness in an amount equal to the Attributable Debt with respect to such Sale and Leaseback Transaction pursuant to Section 4.02, in which case, the corresponding Indebtedness will be deemed Incurred pursuant to Section 4.02, and
(2) the Operating Partnership or any of its Restricted Subsidiaries, within 12 months after the sale or transfer of any assets or properties is completed, applies an amount not less than the Net Cash Proceeds received from such sale in accordance with Section 4.09.
Section 4.05. Limitation on Restricted Payments. (a) The Operating Partnership will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:
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(1) declare or pay any dividend or make any distribution on or with respect to its Capital Stock held by Persons other than the Operating Partnership or any of its Restricted Subsidiaries, other than:
(A) dividends or distributions payable solely in shares of its Capital Stock (other than Disqualified Stock) or in options, warrants or other rights to acquire shares of such Capital Stock; and
(B) pro rata dividends or distributions on Common Stock of any Restricted Subsidiary held by minority stockholders;
(2) purchase, redeem, retire or otherwise acquire for value any shares of Capital Stock of the Company, the Operating Partnership or any Restricted Subsidiary (including options, warrants or other rights to acquire such shares of Capital Stock) held by any Person other than the Operating Partnership or any of its Restricted Subsidiaries; or
(3) make any voluntary or optional principal payment, redemption, repurchase, defeasance, or other acquisition or retirement for value, of Indebtedness of the Operating Partnership or any of its Restricted Subsidiaries that is subordinated in right of payment to the Notes (other than (A) with respect to intercompany Indebtedness of the Operating Partnership or any of its Restricted Subsidiaries or (B) a payment, redemption, repurchase, defeasance or other acquisition or retirement made in anticipation of satisfying a scheduled payment of principal on a Stated Maturity of such Indebtedness within one year of the date of such payment, redemption, repurchase, defeasance or other acquisition or retirement; or
(4) make an Investment, other than a Permitted Investment, in any Person (such payments or any other actions described in clauses (1) through (4) above being collectively referred to as “Restricted Payments”) if, at the time of, and after giving effect to, the proposed Restricted Payment:
(A) a Default or Event of Default shall have occurred and be continuing;
(B) the Operating Partnership could not Incur at least $1.00 of Indebtedness under paragraphs (1) and (3) of Section 4.02; or
(C) the aggregate amount of all Restricted Payments (the amount, if other than in cash, to be determined as the Fair Market Value thereof in good faith by the Board of Directors, whose determination shall be conclusive and evidenced by a Board Resolution) made on or after the Issue Date would exceed the sum of:
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| (i) | 95% of the aggregate amount of the Funds From Operations (or, if the Funds From Operations is a loss, minus 100% of the amount of such loss) (determined by excluding income resulting from transfers of assets by the Operating Partnership or any of its Restricted Subsidiaries to an Unrestricted Subsidiary) accrued on a cumulative basis during the period (taken as one accounting period) beginning on January 1, 2010 and ending on the last day of the last fiscal quarter preceding the Transaction Date for which financial information is available, less the cumulative amount of Restricted Payments made relying upon the exception for Restricted Payments made from cumulative Funds From Operations set forth in clause (C)(i) of Section 4.05(a) in the Indenture dated September 24, 2013 under which the 5.875% Senior Notes due 2021 of the Operating Partnership were issued, plus |
| (ii) | the aggregate Net Cash Proceeds received by the Operating Partnership after the Issue Date from the issuance and sale permitted by the Indenture of its Capital Stock (other than Disqualified Stock) to a Person who is not a Subsidiary of the Operating Partnership, including an issuance or sale permitted by the Indenture of Indebtedness of the Operating Partnership for cash subsequent to the Issue Date upon the conversion of such Indebtedness into Capital Stock (other than Disqualified Stock) of the Operating Partnership, or from the issuance to a Person who is not a Subsidiary of the Operating Partnership of any options, warrants or other rights to acquire Capital Stock of the Operating Partnership (in each case, exclusive of any Disqualified Stock or any options, warrants or other rights that are redeemable for cash at the option of the holder, or are required to be redeemed for cash, prior to the Stated Maturity of the Notes), plus |
| (iii) | an amount equal to the net reduction in Investments (other than reductions in Permitted Investments) in any Person resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances, or other transfers of assets, in each case to the Operating Partnership or any of its Restricted Subsidiaries or from the Net Cash Proceeds from the sale of any such Investment (except, in each case, to the extent any such payment or proceeds are included in the |
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| calculation of Funds From Operations) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries (valued in each case as provided in the definition of “Investments”) not to exceed, in each case, the amount of Investments previously made by the Operating Partnership and its Restricted Subsidiaries in such Person or Unrestricted Subsidiary, plus |
| (iv) | the purchase price of noncash tangible assets acquired in exchange for an issuance of Capital Stock (other than Disqualified Stock) of the Operating Partnership subsequent to the Issue Date |
provided that any payments of bona fide obligations of the Operating Partnership or any Restricted Subsidiary shall not be deemed to be Restricted Payments solely by virtue of the fact of another Person’s co-obligations with respect thereto.
(b) Notwithstanding the foregoing, the Operating Partnership and any Restricted Subsidiary may declare or pay any dividend or make any distribution to the Company to fund a dividend or distribution by the Company (and make any corresponding distributions to the Operating Partnership’s partners other than the Company), so long as the Company believes in good faith that the Company qualifies as a real estate investment trust under the Code and the declaration or payment of any dividend or the making of any distribution is necessary either to maintain the Company’s status as a real estate investment trust under the Code for any calendar year or to enable the Company to avoid payment of any tax for any calendar year that could be avoided by reason of a distribution by the Company to its shareholders, with such distribution to be made as and when determined by the Company, whether during or after the end of, the relevant calendar year, if no Event of Default shall have occurred and be continuing.
(c) The foregoing provisions shall not be violated by reason of:
(1) the payment of any dividend within 60 days after the date of declaration thereof if, at said date of declaration, such payment would comply with Section 4.05(a);
(2) the redemption, repurchase, defeasance or other acquisition or retirement for value of Indebtedness that is subordinated in right of payment to the Notes including premium, if any, and accrued and unpaid interest and related transaction expenses, with the proceeds of, or in exchange for, Indebtedness Incurred under clause (D) of paragraph (4) of Section 4.02;
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(3) the repurchase, redemption or other acquisition of Capital Stock of the Operating Partnership (or options, warrants or other rights to acquire such Capital Stock) in exchange for, or out of the proceeds of a substantially concurrent issuance of, shares of Capital Stock (other than Disqualified Stock) of the Operating Partnership (or options, warrants or other rights to acquire such Capital Stock);
(4) the making of any principal payment on, or the repurchase, redemption, retirement, defeasance or other acquisition for value of, Indebtedness of the Operating Partnership which is subordinated in right of payment to the Notes in exchange for, or out of the proceeds of, a substantially concurrent issuance of, shares of the Capital Stock (other than Disqualified Stock) of the Operating Partnership (or options, warrants or other rights to acquire such Capital Stock);
(5) the retirement of Units upon the conversion of such Units to Capital Stock of the Company;
(6) payments or distributions to dissenting holders of Common Stock of the Operating Partnership or dissenting stockholders of the Company pursuant to applicable law pursuant to or in connection with a consolidation, merger or transfer of assets that complies with Section 5.01 or, with respect to the Company, Section 5.03;
(7) the payment of cash (i) in lieu of the issuance of fractional shares of Equity Interests upon conversion, redemption or exchange of securities convertible into or exchangeable for Equity Interests of the Operating Partnership and (ii) in lieu of the issuance of whole shares of Equity Interests upon conversion, redemption or exchange of securities convertible into or exchangeable for Equity Interests of the Operating Partnership in an aggregate amount not to exceed $10 million;
(8) the acquisition or re-acquisition, whether by forfeiture or in connection with satisfying applicable payroll or withholding tax obligations, of Equity Interests of the Operating Partnership or the Company in connection with the administration of their equity compensation programs in the ordinary course of business;
(9) (i) the redemption, repurchase or other acquisition or retirement of any Capital Stock of the Operating Partnership, or any Restricted Subsidiary from any director, officer or employee of the Operating Partnership, the Company or any Restricted Subsidiary, or from such person’s estate, (a) pursuant to any agreement with such director, officer or employee or (b) upon the death or termination of directorship or employment of such person, in an aggregate amount under this clause (9)(i) not to exceed $10.0 million in any twelve-month period; or (ii) payment of cash upon redemption of Units; provided that (a) upon receipt of a Unit redemption notice, the Company would otherwise be permitted not to use its shelf registration statement but for the expiration of the 90 day aggregate black
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out period under the terms of Section 8.7(b)(ii) of the Partnership Agreement, or the redemption shelf is otherwise unavailable to the Company to issue redemption shares thereunder due to laws and regulations, (b) such payment is not made in respect of any Units beneficially owned by any of Lammot J. du Pont, Hossein Fateh or any member of the Board of Directors of the Operating Partnership and (c) the aggregate amount of cash paid upon redemption of Units pursuant to this clause (9)(ii) does not exceed $10.0 million;
(10) declaration or payment of any cash dividend or other cash distribution in respect of Capital Stock of the Operating Partnership or any of its Restricted Subsidiaries constituting Preferred Stock, so long as the Interest Coverage Ratio contemplated by paragraph (3) of Section 4.02 shall be greater than or equal to 2.0 to 1.0 after giving effect to such payment;
(11) additional Restricted Payments in an aggregate amount not to exceed 7.5% of Total Assets;
(12) the repayment, defeasance, redemption, repurchase or other acquisition of Indebtedness of the Operating Partnership that is subordinated in right of payment to the Notes or Disqualified Stock of the Operating Partnership (a) in exchange for, or out of the Net Cash Proceeds of the substantially concurrent sale (other than to any Subsidiary) of, the Disqualified Stock of the Operating Partnership, or (b) pursuant to a required change of control offer or asset sale offer arising from a Change of Control or Asset Sale, as the case may be, provided that such repayment, repurchase, redemption, acquisition or retirement occurs after all Notes tendered by Holders in connection with a related Offer to Purchase have been repurchased, redeemed or acquired for value;
(13) the declaration and payment of dividends or distributions by the Operating Partnership to, or the making of loans to, the Company in amounts required for the Company to pay, in each case without duplication, (a) franchise taxes and other fees, taxes and expenses required to maintain its corporate existence; (b) customary salary, bonus and other benefits payable to officers, directors and employees of the Company to the extent such salaries, bonuses and other benefits are attributable to the ownership or operation of the Operating Partnership and its Restricted Subsidiaries, including the Operating Partnership’s proportionate share of such amounts relating to the Company being a public company; (c) general corporate operating and overhead costs and expenses of the Company to the extent such costs and expenses are attributable to the ownership or operation of the Operating Partnership and its Restricted Subsidiaries, including the Operating Partnership’s proportionate share of such amounts relating to the Company being a public company; and (d) fees and expenses other than to Affiliates of the Operating Partnership related to any successful or unsuccessful financing transaction or equity offering; or
(14) Permitted Tax Payments;
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provided that, in the case of clauses (9), (10) and (11), no Default or Event of Default shall have occurred and be continuing or occur as a direct consequence of the actions or payments set forth therein. Each Restricted Payment permitted pursuant to this paragraph (other than the Restricted Payment referred to in clause (2), (3), (4), (5), (6), (8), (11) and (12) of this paragraph), and the Net Cash Proceeds from any issuance of Capital Stock referred to in clauses (3) and (4), shall be included in calculating whether the conditions of clause (4)(C) of Section 4.05(a) have been met with respect to any subsequent Restricted Payments.
Section 4.06. Limitation on Dividend and Other Payment Restrictions Affecting Restricted Subsidiaries. (a) Except as provided in Section 4.06(b), the Operating Partnership will not, and will not permit any of its Restricted Subsidiaries to, create or otherwise cause or suffer to exist or become effective any consensual encumbrance or restriction of any kind on the ability of any Restricted Subsidiary to:
(1) pay dividends or make any other distributions permitted by applicable law on any Capital Stock of such Restricted Subsidiary owned by the Operating Partnership or any of its Restricted Subsidiaries,
(2) pay any Indebtedness owed to the Operating Partnership or any other Restricted Subsidiary,
(3) make loans or advances to the Operating Partnership or any other Restricted Subsidiary, or
(4) transfer its property or assets to the Operating Partnership or any other Restricted Subsidiary.
(b) Section 4.10(a) shall not restrict any encumbrances or restrictions:
(1) existing on the Issue Date in the Indenture and any other agreement in effect on the Issue Date, and any extensions, refinancings, renewals or replacements of such agreements; provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect, taken as a whole, to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced;
(2) imposed under any applicable documents or instruments pertaining to any current or future Secured Indebtedness permitted or not prohibited under the Indenture (and relating solely to assets constituting collateral thereunder or cash proceeds from or generated by such assets);
(3) existing under or by reason of applicable law, the Indenture, the Notes and the Guarantees;
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(4) existing with respect to any Person, or the property or assets of such Person acquired by the Operating Partnership or any Restricted Subsidiary, existing at the time of such acquisition and not incurred in contemplation thereof, which encumbrances or restrictions are not applicable to any Person or the property or assets of any Person other than such Person or the property or assets of such Person so acquired;
(5) in the case of Section 4.06(a)(4):
(A) that restrict in a customary manner the subletting, assignment or transfer of any property or asset that is a lease, license, conveyance or contract or similar property or asset;
(B) existing by virtue of any transfer of, agreement to transfer, option or right with respect to, or Lien on, any property or assets of the Operating Partnership or any Restricted Subsidiary not otherwise prohibited by the Indenture;
(C) existing under or by reason of purchase money obligations for property acquired in the ordinary course of business that impose restrictions on that property; or
(D) arising or agreed to in the ordinary course of business, not relating to any Indebtedness, and that do not, individually or in the aggregate, detract from the value of property or assets of the Operating Partnership or any Restricted Subsidiary in any manner material to the Operating Partnership and its Restricted Subsidiaries taken as a whole;
(6) with respect to a Restricted Subsidiary and imposed pursuant to an agreement that has been entered into for the sale or disposition of all or substantially all of the Capital Stock of, or property and assets of, such Restricted Subsidiary (including a restriction on distributions by that Restricted Subsidiary pending its sale or other disposition);
(7) contained in the terms of any Indebtedness or any agreement pursuant to which such Indebtedness was issued if the Operating Partnership determines that any such encumbrance or restriction will not materially affect such Persons’ ability to make principal or interest payments on the Notes;
(8) existing under or by reason of restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business;
(9) customary provisions contained in joint venture agreements entered into in the ordinary course of business;
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(10) contained in any license, permit or other accreditation with a regulatory authority entered into in the ordinary course of business;
(11) contained in agreements or instruments which prohibit the payment or making of dividends or other distributions other than on a pro rata basis; or
(12) in connection with and pursuant to permitted extensions, refinancings thereof, or as renewals or replacements of restrictions imposed pursuant to clauses (1) through (11) of Section 4.10(b); provided that the encumbrances and restrictions in any such extensions, refinancings, renewals or replacements are no less favorable in any material respect, taken as a whole, to the Holders than those encumbrances or restrictions that are then in effect and that are being extended, refinanced, renewed or replaced.
(c) Nothing contained in this Section 4.06 shall prevent the Operating Partnership or any Restricted Subsidiary from restricting the sale or other disposition of property or assets of the Operating Partnership or its Restricted Subsidiaries that secure Indebtedness of the Operating Partnership or any of its Restricted Subsidiaries.
Section 4.07. Limitation on Guarantees by Restricted Subsidiaries. The Operating Partnership will not permit any of its Restricted Subsidiaries (including a newly created or acquired one), directly or indirectly, to Guarantee any Indebtedness of the Operating Partnership or any Restricted Subsidiary (“Guaranteed Indebtedness”), unless:
(1) if such Restricted Subsidiary is not already a Subsidiary Guarantor, such Restricted Subsidiary executes and delivers a supplemental indenture to the Indenture providing for a Subsidiary Guarantee by such Restricted Subsidiary within ten (10) Business Days; and
(2) such Restricted Subsidiary waives and will not in any manner whatsoever claim or take the benefit or advantage of, any rights of reimbursement, indemnity or subrogation or any other rights against the Operating Partnership or any other Restricted Subsidiary as a result of any payment by such Restricted Subsidiary under its Subsidiary Guarantee;
provided that this paragraph shall not be applicable to any Guarantee of any Restricted Subsidiary that existed at the time such Person became a Restricted Subsidiary and was not Incurred in connection with, or in contemplation of, such person becoming a Restricted Subsidiary. If the Guaranteed Indebtedness:
(a) ranks equally in right of payment with the Notes or the Subsidiary Guarantee, then the Guarantee of such Guaranteed Indebtedness shall rank equally with, or subordinate to, the Subsidiary Guarantee; or
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(b) is subordinate in right of payment to the Notes or the Subsidiary Guarantee, then the Guarantee of such Guaranteed Indebtedness shall be subordinated in right of payment to the Notes or the Subsidiary Guarantee at least to the extent that the Guaranteed Indebtedness is subordinated in right of payment to the Notes or the Subsidiary Guarantee.
Section 4.08. Limitation on Transactions with Affiliates. The Operating Partnership will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, enter into, renew or extend any transaction (including, without limitations, the purchase, sale, lease or exchange of property or assets, or the rendering of any service) with any Affiliate of the Operating Partnership or any of its Restricted Subsidiaries, in each case involving consideration in excess of $10 million (in one transaction or a series of related transactions), except upon fair and reasonable terms no less favorable to the Operating Partnership or such Restricted Subsidiary than could be obtained, at the time of such transaction or, if such transaction is pursuant to a written agreement, at the time of the execution of the agreement providing therefore, in a comparable arm’s-length transaction with a Person that is not such an Affiliate.
The foregoing limitation does not limit, and shall not apply to:
(1) transactions for which the Operating Partnership delivers to the Trustee a Board Resolution of the Operating Partnership approved by a majority of the independent members of the Board of Directors;
(2) any transaction solely among the Company, the Operating Partnership and any of its Restricted Subsidiaries or solely among Restricted Subsidiaries;
(3) any payments or other transactions pursuant to any tax-sharing agreement between the Operating Partnership and the Company or other Person with which the Operating Partnership files a consolidated tax return or with which the Operating Partnership is part of a consolidated group for tax purposes;
(4) any Restricted Payments or Permitted Investments not prohibited by Section 4.05;
(5) transactions pursuant to agreements or arrangements in effect on the Issue Date or any amendment, modification, or supplement thereto or replacement thereof, as long as such agreement or arrangement, as so amended, modified, supplemented or replaced, taken as a whole, is not more disadvantageous to the Operating Partnership and the Restricted Subsidiaries than the original agreement or arrangement in existence on the Issue Date;
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(6) director’s fees and any employment, consulting, service or termination agreement, or reasonable and customary indemnification arrangements, entered into by the Operating Partnership or any of its Restricted Subsidiaries with officers, directors and employees of the Company, the Operating Partnership or its Restricted Subsidiaries that are Affiliates of the Operating Partnership or its Restricted Subsidiaries and the payment of compensation to such officers, directors and employees (including amounts paid or securities issued pursuant to employee benefit plans, employee stock option or similar plans), or loans and advances to any officer, director or employee, so long as such agreement has been approved by the Board of Directors;
(7) commission, payroll, travel and similar advances or loans (including payment or cancellation thereof) to officers and employees of the Company, the Operating Partnership or any of its Restricted Subsidiaries;
(8) sales of Equity Interests (other than Disqualified Stock) of the Operating Partnership to Affiliates;
(9) any transaction with any Person who is not an Affiliate immediately before the consummation of such transaction that becomes an Affiliate as a result of such transaction;
(10) any transaction with a joint venture, partnership, limited liability company or other entity that would constitute an Affiliate transaction solely because the Operating Partnership or a Restricted Subsidiary owns an equity interest in such joint venture, partnership, limited liability company or other entity; or
(11) any merger, consolidation or reorganization of the Operating Partnership or a Restricted Subsidiary (otherwise permitted by the Indenture) with or into a Restricted Subsidiary solely for the purpose of changing the domicile of the Operating Partnership or a Restricted Subsidiary.
Section 4.09. Limitation on Asset Sales. The Operating Partnership shall not, and shall not permit any of its Restricted Subsidiaries to, consummate any Asset Sale, unless:
(1) the consideration received by the Operating Partnership or such Restricted Subsidiary is at least equal to the Fair Market Value of the assets sold or disposed of, and
(2) at least 75% of the consideration received consists of cash or Temporary Cash Investments or a combination of both; provided that, with respect to the sale of one or more real estate properties, up to 75% of the consideration may consist of Indebtedness of the purchaser of such real estate properties so long as such Indebtedness is secured by a first priority Lien on the real estate property or properties sold; and provided, further that, for purposes of this clause (2) the amount of the following will be deemed to be cash:
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(a) any liabilities, as shown on the Operating Partnership’s or such Restricted Subsidiary’s most recent balance sheet, of the Operating Partnership or any such Restricted Subsidiary’s (other than contingent liabilities and liabilities that are by their terms subordinated to the Notes or any Guarantee) that are assumed by the transferee of any such assets but, except in the case of an Asset Sale to a Restricted Subsidiary, only to the extent of the reduction in the amount of such liabilities on the Operating Partnership’s consolidated balance sheet;
(b) any securities, evidences of Indebtedness or other obligations received by the Operating Partnership, any Subsidiary Guarantor or any such Restricted Subsidiary from such transferee that are immediately converted by the Operating Partnership, the Subsidiary Guarantor or such Restricted Subsidiary into cash (or as to which the Operating Partnership, any Subsidiary Guarantor or such Restricted Subsidiary has received at or prior to the consummation of the Asset Sale a commitment (which may be subject to customary conditions) from a nationally recognized investment, merchant or commercial bank to convert into cash within one-hundred eighty (180) days of the consummation of such Asset Sale and which are thereafter actually converted into cash within such 180-day period); and
(c) any Designated Non-cash Consideration received by the Operating Partnership or such Restricted Subsidiary in such Asset Sale having an aggregate Fair Market Value, taken together with all other Designated Non-cash Consideration received pursuant to this clause (c) that is at that time outstanding, not to exceed $25 million, with the Fair Market Value of each item of Designated Non-cash Consideration being measured at the time received and without giving effect to subsequent changes in value.
In the event that the Net Cash Proceeds received by the Operating Partnership or such Restricted Subsidiary from one or more Asset Sales occurring on or after the Issue Date in any period of twelve consecutive months (the “Asset Period”) exceeds 1% of Total Assets (determined as of the date closest to the commencement of the Asset Period for which a consolidated balance sheet of the Operating Partnership and its Restricted Subsidiaries is available), then within twelve (12) months after the date Net Cash Proceeds exceed 1% of Total Assets as described above, the Operating Partnership shall or shall cause the excess amount to be applied to:
(A) permanently reduce Secured Indebtedness of the Operating Partnership or any Restricted Subsidiary or Indebtedness of any other Restricted Subsidiary that is not a Guarantor, in each case owing to a Person other than the Company, the Operating Partnership or any of its Restricted Subsidiaries;
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(B) make a capital expenditure or invest in property or assets (other than current assets) of a nature or type or that are used in a business (or in a Restricted Subsidiary, or a Person that becomes a Restricted Subsidiary upon such an Investment, having property and assets of a nature or type, or engaged in a business) similar or related to the nature or type of the property and assets of, or the business of, the Operating Partnership or any of its Restricted Subsidiaries existing on the date of such capital expenditure or investment (or enter into a definitive agreement committing to make such capital expenditure or so invest within 12 months after the date of such agreement);
(C) prepay, repay, redeem or purchase any notes or other pari passu Indebtedness of the Operating Partnership or of any Subsidiary Guarantor or any Indebtedness of a Restricted Subsidiary that is not a Subsidiary Guarantor, in each case owing to a Person other than the Company, the Operating Partnership or any Subsidiary of the Operating Partnership or any other Affiliate of the Operating Partnership; provided, that if the Operating Partnership or a Subsidiary Guarantor shall so prepay, repay, redeem or purchase any such notes or pari passu Indebtedness, the Operating Partnership shall equally and ratably reduce obligations under the notes as provided under Section 3.01, through open-market purchases (provided that such purchases are at or above 100% of the principal amount thereof) or by making an offer (in accordance with the procedures set forth below for an Offer to Purchase pursuant to this Section 4.09) to all holders to purchase at a purchase price equal to 100% of the principal amount thereof, plus accrued and unpaid interest;
(D) fund all or a portion of an optional redemption of the notes pursuant to Section 3.01; or
(E) undertake any combination of the foregoing.
Pending the application of any such Net Cash Proceeds as described above, the Operating Partnership may invest such Net Cash Proceeds in any manner that is not prohibited by the Indenture. The amount of such excess Net Cash Proceeds required to be applied (or to be committed to be applied) during such 12-month period as set forth in the preceding sentence and not applied as so required by the end of such period shall constitute “Excess Proceeds”. If, as of the first day of any calendar month, the aggregate amount of Excess Proceeds not previously subject to an Offer to Purchase pursuant to this Section 4.09 totals more than $25 million, the Operating Partnership must commence, not later than
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the fifteenth Business Day of such month, and consummate an Offer to Purchase from the Holders of the Notes and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in the Indenture with respect to offers to purchase or redeem with the proceeds of sales of assets, on a pro rata basis, an aggregate principal amount of Notes and such other Indebtedness equal to the Excess Proceeds on such date, at a purchase price equal to 100% of the principal amount of the Notes and such other Indebtedness plus, in each case, accrued interest and Additional Interest (if any) to the Payment Date.
If the aggregate principal amount of the Notes and the other Indebtedness that is pari passu with the Notes tendered into such Offer to Purchase exceeds the amount of Excess Proceeds, then the Notes and the other Indebtedness that is pari passu with the Notes will be purchased on a pro rata basis based on the principal amount of the Notes and the other Indebtedness that is pari passu with the Notes tendered. Upon completion of each Offer to Purchase, any remaining Excess Proceeds subject to such Offer to Purchase will no longer be deemed to be Excess Proceeds.
Section 4.10. Repurchase of Notes Upon a Change of Control. (a) Unless the Operating Partnership has previously or concurrently delivered a redemption notice with respect to all existing Notes pursuant to Section 3.01 and all conditions precedent applicable to such redemption notice have been satisfied, the Operating Partnership must commence, within 30 days of the occurrence of a Change of Control, and consummate an Offer to Purchase for all Notes then outstanding, at a purchase price equal to 101% of the principal amount of the Notes, plus accrued interest and Additional Interest (if any) to the Payment Date.
(b) The Operating Partnership will not be required to make an Offer to Purchase upon a Change of Control if a third party makes the Offer to Purchase in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to an Offer to Purchase made by the Operating Partnership and purchases all Notes validly tendered and not withdrawn under such Offer to Purchase. Notwithstanding anything to the contrary in the Indenture, an Offer to Purchase may be made in advance of a Change of Control, conditional upon such Change of Control, if a definitive agreement is in place for the Change of Control at the time of making the Offer to Purchase.
(c) The Operating Partnership will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the Indenture, the Operating Partnership will comply with the applicable securities laws or regulations and will not be deemed to have breached its obligations under the Change of Control provisions of the Indenture by virtue of such compliance.
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Section 4.11. SEC Reports and Reports to Holders. (a) Whether or not the Operating Partnership or the Company is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, the Operating Partnership and the Company must provide the Trustee and Holders within fifteen (15) Business Days after filing, or in the event no such filing is required, within fifteen (15) Business Days after the end of the time periods specified in those sections with:
(1) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if the Operating Partnership or the Company were required to file such forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” and, with respect to the annual financial statements only, a report thereon by the Operating Partnership’s and the Company’s certified independent accountants, and
(2) all current reports that would be required to be filed with the Commission on Form 8-K if the Operating Partnership and the Company were required to file such reports,
provided that the foregoing delivery requirements shall be deemed satisfied if the foregoing materials are available on the SEC’s EDGAR system or any successor system or on the Operating Partnership’s or the Company’s website within the applicable time period.
(b) In addition, whether or not required by the Commission, the Company will, if the SEC will accept the filing, file a copy of all of the information and reports referred to in clauses (1) and (2) of Section 4.11(a) with the Commission for public availability within the time periods specified in the Commission’s rules and regulations. In addition, the Operating Partnership and the Company will make the information and reports available to securities analysts and prospective investors upon request. If the Operating Partnership had any Unrestricted Subsidiaries during the relevant period, the Operating Partnership will also provide to the Trustee and the Holders information sufficient to ascertain the financial condition and results of operations of the Operating Partnership and its Restricted Subsidiaries, excluding in all respects the Unrestricted Subsidiaries.
(c) Notwithstanding anything herein to the contrary, the Operating Partnership and the Company will not be deemed to have failed to comply with any provision of the reporting covenant in Section 4.11(b) for purposes of clause (4) of Section 6.02 as a result of the late filing or provision of any required information or report until 90 days after the date any such information or report was due.
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(d) All obligors on the Notes will comply with Section 314(a) of the Trust Indenture Act.
(e) Delivery of these reports and information to the Trustee is for informational purposes only and the Trustee’s receipt of them will not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Operating Partnership’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 4.12. Suspension of Covenants. (a) For so long as (i) the Notes are rated Investment Grade by each of S&P and Moody’s (or, if either (or both) of S&P and Moody’s have been substituted in accordance with the definition of “Rating Agencies,” by each of the then applicable Rating Agencies) and (ii) no Default has occurred and is continuing under the Indenture (the occurrence of the events described in the foregoing clauses (i) and (ii) being collectively referred to as a “Covenant Suspension Event”), and conditioned upon the Operating Partnership promptly providing the Trustee an Officers’ Certificate and an Opinion of Counsel as to the existence of a Covenant Suspension Event which identifies the date of such Covenant Suspension Event, the Operating Partnership and its Restricted Subsidiaries will not be subject to Section 4.02, Section 4.04, Section 4.05, Section 4.06, Section 4.07, Section 4.08, Section 4.09 and clause (3) of Section 5.01 (the “Suspended Covenants”).
(b) Additionally, during such time as the above referenced covenants are suspended, the Operating Partnership will not be permitted to designate any Restricted Subsidiary as an Unrestricted Subsidiary unless the Operating Partnership would have been permitted to designate such Subsidiary as an Unrestricted Subsidiary if the covenants had been in effect for such period.
(c) If at any time the Notes’ credit rating is downgraded from an Investment Grade rating or if a Default or Event of Default occurs and is continuing, then the Suspended Covenants will thereafter be reinstated as if such covenants had never been suspended (the “Reinstatement Date”) and will be applicable pursuant to the terms of the Indenture (including in connection with performing any calculation or assessment to determine compliance with the terms of the Indenture), unless and until the Notes subsequently attain an Investment Grade rating and no Default or Event of Default is in existence (in which event the Suspended Covenants shall no longer be in effect for such time that the Notes maintain an Investment Grade rating and no Default or Event of Default is in existence); provided that no Default, Event of Default or breach of any kind shall be deemed to exist under the Indenture, the Notes or the Guarantees with respect to the Suspended Covenants based on, and none of the Operating Partnership or any of its Subsidiaries shall bear any liability for, any actions taken or events occurring during the Suspension Period (as defined below), or any actions taken at any time pursuant to any contractual obligation arising prior to the
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Reinstatement Date, regardless of whether such actions or events would have been permitted if the applicable Suspended Covenants remained in effect during such period. The period of time between the date of suspension of the covenants and the Reinstatement Date, if any, is referred to as the “Suspension Period.”
(d) The Operating Partnership shall deliver an Officers’ Certificate to the trustee specifying (i) if a Covenant Suspension Event has occurred and (ii) if a Reinstatement Date has occurred; provided that in no case shall such Reinstatement Date be conditioned upon the receipt of such Officers’ Certificate.
(e) Calculations made after the Reinstatement Date of the amount available to be made as Restricted Payments under Section 4.05 will be made as though the covenants described under Section 4.05 had been in effect since the Issue Date and throughout the Suspension Period. Accordingly, Restricted Payments made during the Suspension Period will reduce the amount available to be made as Restricted Payments under clause (C) of Section 4.05(a), to the extent set forth in such covenant.
(f) The Trustee shall not have any duty to monitor whether or not a Covenant Suspension Event or Reinstatement Date has occurred or ended, nor any duty to notify the noteholders of any of the foregoing.
Section 4.13. Reports to Trustee. The Operating Partnership and the Company will notify the Trustee if and when any Notes are listed on any national securities exchange and of any delisting.
ARTICLE 5
CONSOLIDATION, MERGER AND SALE OF ASSETS
Section 5.01. Applicability of Article Eight of the Base Indenture. Article Eight of the Base Indenture shall not apply to the Notes. Instead, the provisions set forth in this Article 5 shall, with respect to the Notes, supersede in its entirety Article Eight of the Base Indenture and all references in the Base Indenture to Article Eight thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 5 and the provisions set forth in this Article 5.
Section 5.02. Consolidation, Merger and Sale of Assets by the Operating Partnership. The Operating Partnership will not merge with or into, or sell, convey, transfer, lease or otherwise dispose of all or substantially all of its property and assets (as an entirety or substantially an entirety in one transaction or a series of related transactions) to, any Person or permit any Person to merge with or into the Operating Partnership unless:
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(1) the Operating Partnership shall be the continuing Person, or the Person (if other than the Operating Partnership) formed by such consolidation or into which the Operating Partnership is merged or that acquired or leased such property and assets of the Operating Partnership shall be an entity organized and validly existing under the laws of the United States of America or any state or jurisdiction thereof and shall expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all of the obligations of the Operating Partnership on the Notes and under the Indenture;
(2) immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing;
(3) immediately after giving effect to such transaction on a pro forma basis the Operating Partnership, or any Person becoming the successor obligor of the Notes, as the case may be, (x) could Incur at least $1.00 of Indebtedness under paragraphs (1) and (3) of Section 4.02 or (y) has a Leverage Ratio that is no higher than the Leverage Ratio of the Operating Partnership immediately before giving effect to the transaction and any related Incurrence of Indebtedness; provided that this clause (3) shall not apply to a consolidation or merger of one or more Restricted Subsidiaries with or into the Operating Partnership so long as, in connection with any such merger or consolidation, no consideration (other than Capital Stock (other than Disqualified Stock) in the surviving Person or the Operating Partnership) shall be issued or distributed to the holders of Capital Stock of the Operating Partnership; and
(4) the Operating Partnership delivers to the Trustee an Officers’ Certificate (attaching the arithmetic computations to demonstrate compliance with clause (3), if applicable) and an Opinion of Counsel, in each case stating that such consolidation, merger or transfer and such supplemental indenture complies with this provision and that all conditions precedent provided for herein relating to such transaction have been complied with; provided that clause (3) above does not apply if, in the good faith determination of the Board of Directors, whose determination shall be evidenced by a Board Resolution, the principal purpose of such transaction is to change the state of domicile of the Operating Partnership, so long as any such transaction shall not have as one of its purposes the evasion of the foregoing limitations.
Upon any consolidation or merger or any transfer of all or substantially all of the Operating Partnership’s assets, in accordance with the foregoing, the successor Person formed by such consolidation or into which the Operating Partnership is merged or to which such transfer is made, shall succeed to, be substituted for, and may exercise every one of the Operating Partnership’s rights and powers under the Indenture with the same effect as if such successor Person had been named therein as the Operating Partnership and, except in the case of the lease or a sale or other transfer of less than all assets, the Operating Partnership shall be released from the obligations under the Notes.
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Section 5.03. Consolidation, Merger and Sale of Assets by a Guarantor. No Guarantor may merge with or into any Person, or sell, convey, transfer or dispose of all or substantially all of the Guarantor’s assets, in one transaction or a series of related transactions, to any Person (other than the Operating Partnership or another Guarantor), unless:
(A) the other Person becomes a Guarantor concurrently with the transaction; or
(B) (1) either (x) the Guarantor is the continuing Person or (y) the resulting, surviving or transferee Person expressly assumes by supplemental indenture (or other joinder agreement, as applicable) all of the obligations of the Guarantor under its Note Guarantee; and
(2) immediately after giving effect to the transaction, no Default has occurred and is continuing; or
(C) except in the case of the Company, the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Guarantor or the sale or disposition of all or substantially all the assets of the Guarantor (in each case other than to the Operating Partnership or a Restricted Subsidiary) otherwise permitted or not prohibited by the Indenture.
Notwithstanding the foregoing, the Guarantee of the Notes by a Guarantor shall be automatically released as set forth in Sections 1601(c)-(d) of the Base Indenture and Section 10.04.
ARTICLE 6
DEFAULT AND REMEDIES
Section 6.01. Applicability of Article Five of the Base Indenture. Article Five of the Base Indenture shall not apply to the Notes. Instead, the provisions set forth in this Article 6 shall, with respect to the Notes, supersede in its entirety Article Five of the Base Indenture and all references in the Base Indenture to Article Five thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 6 and the provisions set forth in this Article 6.
Section 6.02. Events of Default. An “Event of Default” occurs if
(1) there occurs a default in the payment of the principal of, or premium, if any, on any Note when the same becomes due and payable at maturity, upon acceleration or redemption, or otherwise;
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(2) there occurs a default in the payment of interest on any Note when the same becomes due and payable, and the default continues for a period of 30 days;
(3) there occurs a default in the performance or breach of the provisions of Section 5.01 or the failure by the Operating Partnership to make or consummate an Offer to Purchase in accordance with Section 4.09 or Section 4.10;
(4) the Operating Partnership or the Company defaults in the performance of or breaches any other covenant or agreement of the Operating Partnership or the Company in the Indenture or under the Notes (other than a default specified in clause (1), (2) or (3) above) and such default or breach continues for a period of 60 consecutive days after written notice by the Trustee or the Holders of 25% or more in aggregate principal amount of the Notes;
(5) there occurs with respect to any issue or issues of Indebtedness of the Operating Partnership or the Company or any Significant Subsidiary having an outstanding principal amount of $35 million or more in the aggregate for all such issues of all such Persons, whether such Indebtedness now exists or shall hereafter be created:
(i) an event of default that has caused the holder thereof to declare such Indebtedness to be due and payable prior to its Stated Maturity and such Indebtedness has not been discharged in full or such acceleration has not been rescinded or annulled within 30 days of such acceleration; and/or
(ii) the failure to make a principal payment at the final (but not any interim) fixed maturity and such defaulted payment shall not have been made, waived or extended within 30 days of such payment default;
(6) any final judgment or order (not covered by insurance) for the payment of money in excess of $35 million in the aggregate for all such final judgments or orders against all such Persons (treating any deductibles, self-insurance or retention as not covered by insurance):
(i) shall be rendered against the Operating Partnership or the Company or any Significant Subsidiary and shall not be paid or discharged; and
(ii) there shall be any period of 60 consecutive days following entry of the final judgment or order that causes the aggregate amount for all such final judgments or orders outstanding and not paid or discharged against all such Persons to exceed $35
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million during which a stay of enforcement of such final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect;
(7) a court having jurisdiction in the premises enters a decree or order for:
(i) relief in respect of the Operating Partnership or the Company or any Significant Subsidiary in an involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect;
(ii) appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Operating Partnership or the Company or any Significant Subsidiary or for all or substantially all of the property and assets of the Operating Partnership or the Company or any Significant Subsidiary; or
(iii) the winding up or liquidation of the affairs of the Operating Partnership or Company or any Significant Subsidiary and, in each case, such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(8) the Operating Partnership or the Company or any Significant Subsidiary
(i) commences a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or consents to the entry of an order for relief in an involuntary case under such law;
(ii) consents to the appointment of or taking possession by a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official of the Operating Partnership or the Company or any Significant Subsidiary or for all or substantially all of the property and assets of the Operating Partnership or the Company or any Significant Subsidiary; or
(iii) effects any general assignment for the benefit of its creditors; or
(9) the Note Guarantees of Subsidiaries that in the aggregate would be a Significant Subsidiary cease, or the Company Guarantee of the Notes ceases, to be in full force and effect (other than in accordance with the terms of such Guarantees and the Indenture) or any Guarantor notifies the Trustee in writing that it denies or disaffirms its obligations under its Guarantee of the Notes.
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Section 6.03. Acceleration. (a) If an Event of Default, other than a bankruptcy default with respect to the Operating Partnership or the Company, occurs and is continuing under the Indenture, the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then outstanding, by written notice to the Operating Partnership and the Company (and to the Trustee if the notice is given by the Holders), may, and the Trustee at the request of such Holders shall, declare the principal of, premium, if any, and accrued interest on the Notes to be immediately due and payable. Upon a declaration of acceleration, such principal, premium, if any, and accrued interest will become immediately due and payable. In the event of a declaration of acceleration because an Event of Default set forth in clause (5) above has occurred and is continuing, such declaration of acceleration shall be automatically rescinded and annulled if the Event of Default triggering such Event of Default pursuant to clause (5) shall be remedied or cured by the Operating Partnership, the Company or the relevant Significant Subsidiary or waived by the holders of the relevant Indebtedness within 60 days after the declaration of acceleration with respect thereto. If a bankruptcy default occurs with respect to the Operating Partnership or the Company, the principal of, premium, if any, and accrued interest on the Notes then outstanding shall automatically become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
(b) The Holders of at least a majority in principal amount of the outstanding Notes by written notice to the Operating Partnership, the Company and to the Trustee may waive all past Defaults and rescind and annul a declaration of acceleration and its consequences if:
(1) all existing Events of Default, other than the nonpayment of the principal of, premium, if any, and interest on the Notes that have become due solely by the declaration of acceleration, have been cured or waived, and
(2) the rescission would not conflict with any judgment or decree of a court of competent jurisdiction.
Section 6.04. Other Remedies. If an Event of Default occurs and is continuing, the Trustee may pursue, in its own name or as trustee of an express trust, any available remedy by proceeding at law or in equity to collect the payment of principal of and interest on the Notes or to enforce the performance of any provision of the Notes or the Indenture. The Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding.
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Section 6.05. Waiver of Past Defaults. Except as otherwise provided in Sections Section 6.036.03, 6.08 and 9.04, the Holders of not less than a majority in principal amount of the outstanding Notes may, by notice to the Trustee, waive an existing Default and its consequences. Upon such waiver, the Default will cease to exist, and any Event of Default arising therefrom will be deemed to have been cured, but no such waiver will extend to any subsequent or other Default or impair any right consequent thereon.
Section 6.06. Control by Majority. The Holders of at least a majority in aggregate principal amount of the outstanding Notes may direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture, that may involve the Trustee in personal liability, or that the Trustee determines in good faith may be unduly prejudicial to the rights of Holders of Notes not joining in the giving of such direction, and may take any other action it deems proper that is not inconsistent with any such direction received from Holders of Notes.
Section 6.07. Limitation on Suits. A Holder may not institute any proceeding, judicial or otherwise, with respect to the Indenture or the Notes, or for the appointment of a receiver or trustee, or for any other remedy under the Indenture or the Notes, unless:
(1) the Holder has previously given to the Trustee written notice of a continuing Event of Default;
(2) Holders of at least 25% in aggregate principal amount of outstanding Notes have made written request to the Trustee to institute proceedings in respect of the Event of Default in its own name as Trustee under the Indenture;
(3) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee against any costs, liabilities or expenses to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) during such 60-day period, the Holders of at least a majority in aggregate principal amount of the outstanding Notes have not given the Trustee a direction that is inconsistent with such written request.
Section 6.08. Rights of Holders to Receive Payment. Notwithstanding anything to the contrary, the right of a Holder of a Note to receive payment of principal of, premium, if any, or interest on its Note on or after the Stated
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Maturities thereof, or to bring suit for the enforcement of any such payment on or after such respective dates, may not be impaired or affected without the consent of that Holder.
Section 6.09. Collection Suit by Trustee. If an Event of Default in payment of principal or interest specified in clause (1) or (2) of Section 6.02 occurs and is continuing, the Trustee may recover judgment in its own name and as trustee of an express trust for the whole amount of principal and accrued interest remaining unpaid, together with interest on overdue principal and overdue installments of interest, in each case at the rate specified in the Notes, and such further amount as is sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee hereunder.
Section 6.10. Trustee May File Proofs of Claim. The Trustee may file proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee hereunder) and the Holders allowed in any judicial proceedings relating to the Operating Partnership or any Guarantor or their respective creditors or property, and is entitled and empowered to collect, receive and distribute any money, securities or other property payable or deliverable upon conversion or exchange of the Notes or upon any such claims. 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, if the Trustee consents to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, and any other amounts due the Trustee hereunder. Nothing in the Indenture will be deemed to empower 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.
Section 6.11. Priorities. If the Trustee collects any money pursuant to this Article, it shall pay out the money in the following order:
First: to the Trustee for all amounts due hereunder;
Second: to Holders for amounts then due and unpaid for principal of and interest on the Notes, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest; and
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Third: to the Operating Partnership or as a court of competent jurisdiction may direct.
The Trustee, upon written notice to the Operating Partnership, may fix a record date and payment date for any payment to Holders pursuant to this Section 6.11.
Section 6.12. Restoration of Rights and Remedies. If the Trustee or any Holder has instituted a proceeding to enforce any right or remedy under the Indenture and the proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to the Holder, then, subject to any determination in the proceeding, the Operating Partnership, any Guarantors, the Trustee and the Holders will be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Operating Partnership, any Guarantors, the Trustee and the Holders will continue as though no such proceeding had been instituted.
Section 6.13. Undertaking for Costs. In any suit for the enforcement of any right or remedy under the Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court may require any party litigant in such suit (other than the Trustee) to file an undertaking to pay the costs of the suit, and the court may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant (other than the Trustee) in the suit having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by a Holder to enforce payment of principal of or interest on any Note on the respective due dates, or a suit by Holders of more than 10% in principal amount of the outstanding Notes.
Section 6.14. Rights and Remedies Cumulative. No right or remedy conferred or reserved to the Trustee or to the Holders under the Indenture is intended to be exclusive of any other right or remedy, and all such rights and remedies are, to the extent permitted by law, cumulative and in addition to every other right and remedy hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or exercise of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or exercise of any other right or remedy.
Section 6.15. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder to exercise any right or remedy accruing upon any Event of Default will 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 6 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.
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Section 6.16. Waiver of Stay, Extension or Usury Laws. The Operating Partnership and each Guarantor 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 stay or extension law or any usury law or other law that would prohibit or forgive the Operating Partnership or the Guarantor from paying all or any portion of the principal of, or interest on the Notes as contemplated herein, wherever enacted, now or at any time hereafter in force, or that may affect the covenants or the performance of the Indenture. The Operating Partnership and each Guarantor hereby expressly waives, to the extent that it may lawfully do so, 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 7
THE TRUSTEE
Section 7.01. General. The first paragraph of Section 601 of the Base Indenture is hereby amended and restated in full, with respect to the Notes, to read as follows:
“The duties and responsibilities of the Trustee shall be as provided by the Trust Indenture Act; provided, that (i) notwithstanding Section 315(a)(2) of the Trust Indenture Act, the Trustee need not confirm or investigate the accuracy of any mathematical calculations or other facts, statements, opinions or conclusions stated in the certificates or opinions referred to therein, and (ii) except during the continuance of an Event of Default, the Trustee need perform only those duties that are specifically set forth in the Indenture and no others, and no implied covenants or obligations will be read into the Indenture against the Trustee. In case an Event of Default has occurred and is continuing, the Trustee shall exercise those rights and powers vested in it by the Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs. 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.”
ARTICLE 8
DEFEASANCE AND DISCHARGE
Section 8.01. Applicability of Article Four of the Base Indenture. Article Four of the Base Indenture shall not apply to the Notes. Instead, the provisions set forth in this Article 8 shall, with respect to the Notes, supersede in its entirety Article Four of the Base Indenture and all references in the Base Indenture to Article Four thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 8 and the provisions set forth in this Article 8.
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Section 8.02. Discharge of Operating Partnership’s Obligations. (a) Subject to paragraph (b), the Operating Partnership’s obligations under the Notes and the Indenture, and each Guarantor’s obligations under its Note Guarantee, will terminate if:
(1) all Notes previously authenticated and delivered (other than (i) destroyed, lost or stolen Notes that have been replaced or (ii) Notes that are paid pursuant to Section 1001 of the Base Indenture or (iii) Notes for whose payment money or U.S. Government Obligations have been held in trust and then repaid to the Operating Partnership pursuant to Section 8.06) have been delivered to the Trustee for cancellation and the Operating Partnership has paid all sums payable by it hereunder; or
(2) (A) the Notes mature within sixty days, or all of them are to be called for redemption within sixty days under arrangements satisfactory to the Trustee for giving the notice of redemption,
(B) the Operating Partnership irrevocably deposits in trust with the Trustee, as trust funds solely for the benefit of the Holders, money or U.S. Government Obligations or a combination thereof sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certificate delivered to the Trustee, without consideration of any reinvestment, to pay principal of and interest on the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder,
(C) no Default has occurred and is continuing on the date of the deposit,
(D) the deposit will not result in a breach or violation of, or constitute a default under, the Indenture or any other agreement or instrument to which the Operating Partnership is a party or by which it is bound, and
(E) the Operating Partnership delivers to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of the Indenture have been complied with.
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(b) After satisfying the conditions in clause (1), only the Operating Partnership’s obligations under Section 606 of the Base Indenture will survive. After satisfying the conditions in clause (2), only the Operating Partnership’s obligations in Article 2 and Sections 8.06 and 8.07 and Sections 606, 608, 1001 and 1002 of the Base Indenture will survive. In either case, the Trustee upon request will acknowledge in writing the discharge of the Operating Partnership’s obligations under the Notes and the Indenture (and each Guarantor’s obligations under its Note Guarantee) other than the surviving obligations.
Section 8.03. Legal Defeasance. After the 123rd day following the deposit referred to in clause (1), the Operating Partnership will be deemed to have paid and will be discharged from its obligations in respect of the Notes and the Indenture, other than its obligations in Article 2 and Sections 8.06 and 8.07 and Sections 606, 608, 1001 and 1002 of the Base Indenture and each Guarantor’s obligations under its Note Guarantee will terminate, provided the following conditions have been satisfied:
(1) The Operating Partnership has irrevocably deposited in trust with the Trustee, as trust funds solely for the benefit of the Holders, money or U.S. Government Obligations or a combination thereof sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certificate thereof delivered to the Trustee, without consideration of any reinvestment, to pay principal of and accrued interest on the Notes on the Stated Maturity of such payments in accordance with the terms of the Indenture and the Notes.
(2) Immediately after giving effect to the deposit referred to in clause (i) above on a pro forma basis, no Default or Event of Default shall have occurred and be continuing on the date of such deposit or occur at any time during the 123-day period following the deposit.
(3) The deposit will not result in a breach or violation of, or constitute a default under, any other material agreement or instrument to which the Operating Partnership or any of its Restricted Subsidiaries is a party or by which the Operating Partnership or any of its Restricted Subsidiaries is bound.
(4) The Operating Partnership has delivered to the Trustee
(A) an Opinion of Counsel to the effect that beneficial owners will not recognize income, gain or loss for federal income tax purposes as a result of the Operating Partnership’s exercise of its option pursuant to this Section 8.03 and will be subject to federal income tax on the same amount and in the same manner and at the same times as would otherwise have been the case if such deposit, defeasance and discharge had not occurred, which Opinion of Counsel must be based upon (and accompanied by a copy of) a ruling of the Internal Revenue Service to the same effect unless there has been a change in applicable federal income tax law after the Issue Date such that a ruling is no longer required, and
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(B) an Opinion of Counsel to the effect that (i) the creation of the defeasance trust does not violate the Investment Operating Partnership Act of 1940, (ii) the Holders have a valid first priority Note interest in the trust funds (subject to customary exceptions), and (iii) after the passage of 123 days following the deposit, the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law.
(5) If at such time the Notes are listed on a national securities exchange, the Operating Partnership has delivered to the Trustee an Opinion of Counsel to the effect that such deposit, defeasance and discharge will not cause the Notes to be delisted.
(6) The Operating Partnership has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance have been complied with.
Prior to the end of the 123-day period, none of the Operating Partnership’s obligations under the Indenture (nor any Guarantor’s obligations under its Note Guarantee) will be discharged. Thereafter, the Trustee upon request will acknowledge in writing the discharge of the Operating Partnership’s obligations under the Notes and the Indenture (and each Guarantor’s obligations under its Note Guarantee) except for the surviving obligations specified above.
Section 8.04. Covenant Defeasance. After the 123rd day following the deposit referred to in clause (1), the Operating Partnership’s obligations set forth in Section 4.02 through Section 4.11, inclusive, and clauses (3) and (4) of Section 5.01 will terminate and clause (3) under Section 6.01 with respect to clauses (3) and (4) of Section 5.02, clause (4) under Section 6.02 with respect to Section 4.02 through Section 4.11, inclusive, and clauses (5) and (6) under Section 6.01 will no longer constitute Events of Default, provided the following conditions have been satisfied:
(1) The Operating Partnership has complied with clauses (1), (2), (3), 4(B), (5) and (6) of Section 8.03; and
(2) the Operating Partnership has delivered to the Trustee an Opinion of Counsel to the effect that the Holders will not recognize income, gain or loss for federal income tax purposes as a result of the defeasance and will be subject to federal income tax on the same amount and in the same manner and at the same times as would otherwise have been the case.
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Except as specifically stated above, none of the Operating Partnership’s obligations under the Indenture will be discharged.
Section 8.05. Application of Trust Money. Subject to Section 8.06, the Trustee will hold in trust the money or U.S. Government Obligations deposited with it pursuant to Section 8.02, 8.03 or 8.04, and apply the deposited money and the proceeds from deposited U.S. Government Obligations to the payment of principal of and interest on the Notes in accordance with the Notes and the Indenture. Such money and U.S. Government Obligations need not be segregated from other funds except to the extent required by law.
Section 8.06. Repayment to Operating Partnership. Subject to Sections 8.02, 8.03 and 8.04 and Section 608 of the Base Indenture the Trustee will promptly pay to the Operating Partnership upon request any excess money held by the Trustee at any time and thereupon be relieved from all liability with respect to such money. The Trustee will pay to the Operating Partnership upon request any money held for payment with respect to the Notes that remains unclaimed for two years, provided that before making such payment the Trustee may at the expense of the Operating Partnership publish once in a newspaper of general circulation in New York City, or send to each Holder entitled to such money, notice that the money remains unclaimed and that after a date specified in the notice (at least 30 days after the date of the publication or notice) any remaining unclaimed balance of money will be repaid to the Operating Partnership. After payment to the Operating Partnership, Holders entitled to such money must look solely to the Operating Partnership for payment, unless applicable law designates another Person, and all liability of the Trustee with respect to such money will cease.
Section 8.07. Reinstatement. If and for so long as the Trustee is unable to apply any money or U.S. Government Obligations held in trust pursuant to Section 8.02, 8.03 or 8.04 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Operating Partnership’s and the Guarantor’s obligations under the Indenture and the Notes will be reinstated as though no such deposit in trust had been made. If the Operating Partnership or a Guarantor makes any payment of principal of or interest on any Notes because of the reinstatement of its obligations, it will be subrogated to the rights of the Holders of such Notes to receive such payment from the money or U.S. Government Obligations held in trust.
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ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.01. Applicability of Article Nine of the Base Indenture. Article Nine of the Base Indenture shall not apply to the Notes. Instead, the provisions set forth in this Article 9 shall, with respect to the Notes, supersede in its entirety Article Nine of the Base Indenture and all references in the Base Indenture to Article Nine thereof and the provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Article 9 and the provisions set forth in this Article 9.
Section 9.02. Amendments Without Consent of Holders. The Operating Partnership, the Company and the Trustee may amend or supplement the Indenture, the Notes and the Note Guarantees without notice to or the consent of any Noteholder
(1) to cure any ambiguity, defect, omission or inconsistency in the Indenture or the Notes;
(2) to comply with Article 5 herein;
(3) to comply with any requirements of the Commission in connection with the qualification of the Indenture under the Trust Indenture Act;
(4) to evidence and provide for the acceptance of an appointment hereunder by a successor Trustee;
(5) to provide for uncertificated Notes in addition to or in place of certificated Notes, provided that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code, or in a manner such that the uncertificated Notes are described in Section 163(f)(2)(B) of the Code;
(6) to provide for any Guarantee of the Notes, to secure the Notes or to confirm and evidence the release, termination or discharge of any Guarantee of or Lien securing the Notes when such release, termination or discharge is permitted by the Indenture;
(7) to provide for the issuance of additional Notes in accordance with the terms of the Indenture;
(8) to conform any provision of the Indenture to the “Description of the Notes” section contained in the Preliminary Prospectus Supplement relating to the Notes dated June 2, 2015 as superseded, to the extent inconsistent, by the Pricing Term Sheet dated June 4, 2015; or
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(9) to make any other change that does not materially and adversely affect the rights of any Holder.
Section 9.03. Amendments With Consent of Holders. (a) Except as otherwise provided in Sections 6.03, 6.05, 6.08 or Section 9.03(b), the Operating Partnership, the Company and the Trustee may amend the Indenture and the Notes with the written consent of the Holders of at least a majority in principal amount of the outstanding Notes, and the Holders of at least a majority in principal amount of the outstanding Notes by written notice to the Trustee may waive future compliance by the Operating Partnership with any provision of the Indenture or the Notes.
(b) Notwithstanding the provisions of paragraph (a), without the consent of each Holder affected, an amendment or waiver may not
(1) change the Stated Maturity of the principal of, or any installment of interest on, any Note;
(2) reduce the principal amount of, or premium, if any, or interest on, any Note;
(3) change the place of payment of principal of, or premium, if any, or interest on, any Note;
(4) impair the right to institute suit for the enforcement of any payment on or after the Stated Maturity (or, in the case of a redemption, on or after the Redemption Date) of any Note;
(5) reduce the above-stated percentages of outstanding Notes the consent of whose Holders is necessary to modify or amend the Indenture;
(6) waive a default in the payment of principal of, premium, if any, or interest on the Notes;
(7) voluntarily release a Guarantor of the Notes other than in accordance with the Indenture;
(8) after the time an Offer to Purchase is required to have been made under Section 4.09 or Section 4.10 reduce the purchase amount or price or extend the latest expiration date or purchase date thereunder; or
(9) reduce the percentage or aggregate principal amount of outstanding Notes the consent of whose Holders is necessary for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults.
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(c) It is not necessary for Noteholders to approve the particular form of any proposed amendment, supplement or waiver, but is sufficient if their consent approves the substance thereof.
(d) An amendment, supplement or waiver under this Section 9.03 will become effective on receipt by the Trustee of written consents from the Holders of the requisite percentage in principal amount of the outstanding Notes. After an amendment, supplement or waiver under this Section 9.03 becomes effective, the Operating Partnership will send to the Holders affected thereby a notice briefly describing the amendment, supplement or waiver. The Operating Partnership will send supplemental indentures to Holders upon request. Any failure of the Operating Partnership to send such notice, or any defect therein, will not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
Section 9.04. Effect of Consent. (a) After an amendment, supplement or waiver becomes effective, it will bind every Holder unless it is of the type requiring the consent of each Holder affected. If the amendment, supplement or waiver is of the type requiring the consent of each Holder affected, the amendment, supplement or waiver will bind each Holder that has consented to it and every subsequent Holder of a Note that evidences the same debt as the Note of the consenting Holder.
(b) If an amendment, supplement or waiver changes the terms of a Note, the Trustee may require the Holder to deliver it to the Trustee so that the Trustee may place an appropriate notation of the changed terms on the Note and return it to the Holder, or exchange it for a new Note that reflects the changed terms. The Trustee may also place an appropriate notation on any Note thereafter authenticated. However, the effectiveness of the amendment, supplement or waiver is not affected by any failure to annotate or exchange Notes in this fashion.
Section 9.05. Trustee’s Rights and Obligations. The Trustee is entitled to receive, and will be fully protected in relying upon, an Opinion of Counsel stating that the execution of any amendment, supplement or waiver authorized pursuant to this Article 9 is authorized or permitted by the Indenture. If the Trustee has received such an Opinion of Counsel, it shall sign the amendment, supplement or waiver so long as the same does not adversely affect the rights of the Trustee. The Trustee may, but is not obligated to, execute any amendment, supplement or waiver that affects the Trustee’s own rights, duties or immunities under the Indenture.
Section 9.06. Conformity With Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
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Section 9.07. Payments for Consents. Neither the Operating Partnership nor any of its Subsidiaries or Affiliates may, directly or indirectly, pay or cause to be paid any consideration, whether by way of interest, fee or otherwise, to any Holder for or as an inducement to any consent, waiver or amendment of any of the terms or provisions of the Indenture or the Notes unless such consideration is offered to be paid or agreed to be paid to all Holders of the Notes that consent, waive or agree to amend such term or provision within the time period set forth in the solicitation documents relating to the consent, waiver or amendment.
ARTICLE 10
GUARANTEES
Section 10.01. The Guarantees. The provisions of Article Sixteen of the Base Indenture shall apply to the Notes. The Guarantors hereto hereby agree to perform all of the obligations and agreements of a “Guarantor” as defined in the Base Indenture.
Section 10.02. Limitation on Amount of Guarantee. Notwithstanding anything to the contrary in this Article 10 and Article Sixteen of the Base Indenture, each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of such Guarantor not constitute a fraudulent conveyance under applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision of state law. To effectuate that intention, the Trustee, the Holders and the Guarantors hereby irrevocably agree that the obligations of each Guarantor under its Note Guarantee are limited to the maximum amount that would not render the Guarantor’s obligations subject to avoidance under applicable fraudulent conveyance provisions of the United States Bankruptcy Code or any comparable provision of state law.
Section 10.03. Execution and Delivery of Guarantee. The execution by each Guarantor of the Indenture (or a supplemental indenture substantially in the form of Exhibit B) evidences the Note Guarantee of such Guarantor, whether or not the person signing as an officer of the Guarantor still holds that office at the time of authentication of any Note. The delivery of any Note by the Trustee after authentication constitutes due delivery of the Note Guarantee set forth in the Indenture on behalf of each Guarantor.
Section 10.04. Release of Guarantee. (a) The Note Guarantee of a Guarantor other than the Company will automatically terminate upon:
(1) a sale or other disposition (including by way of consolidation or merger) of the Guarantor, or the Capital Stock of the Guarantor such that the Guarantor is no longer a Subsidiary, or the sale or disposition of all or substantially all the assets of the Guarantor (other than to the Operating Partnership or a Restricted Subsidiary) otherwise permitted or not prohibited by the Indenture,
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(2) the release of the Guarantees of all other Indebtedness by such Guarantor, unless at the time of such release a Default or Event of Default shall have occurred and be continuing under the Indenture;
(3) the designation in accordance with the Indenture of the Guarantor as an Unrestricted Subsidiary, or
(4) defeasance or discharge of the Notes, as provided in Section 8.01, Section 8.03 or Section 8.04.
(b) The Note Guarantee of the Company will automatically terminate upon:
(1) the release of the Guarantees of all other Indebtedness by the Company, unless at the time of such release a Default or Event of Default shall have occurred and be continuing under the Indenture; or
(2) defeasance or discharge of the Notes, as provided in Section 8.02, Section 8.03 or Section 8.04.
(c) In addition, if on any date following the Issue Date, the Notes are rated Investment Grade by both Rating Agencies, and in connection therewith each Rating Agency received written information from the Operating Partnership stating that the release of all of the Guarantees will occur upon an Investment Grade rating, and no Default or Event of Default shall have occurred and be continuing under the Indenture on the date of such release, then, beginning on that date, the Guarantors will be automatically released from their obligations under the Guarantees; provided that as soon as possible following a Reinstatement Date, the Company and each of the Operating Partnership’s Restricted Subsidiaries who would have been required to Guarantee the Notes but for the foregoing, shall execute and deliver a supplemental indenture to the Indenture providing for the reinstatement of the Note Guarantee by the Company and a Subsidiary Guarantee by such Restricted Subsidiary.
(d) Upon delivery by the Operating Partnership to the Trustee of an Officers’ Certificate and an Opinion of Counsel to the foregoing effect, the Trustee will execute any documents reasonably required in order to evidence the release of the Guarantor from its obligations under its Note Guarantee.
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ARTICLE 11
MISCELLANEOUS
Section 11.01. Execution as Supplemental Indenture. This First Supplemental Indenture is executed and shall be construed as an indenture supplemental to the Base Indenture and, as provided in the Base Indenture, this First Supplemental Indenture forms a part thereof.
Section 11.02. Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with another provision hereof, or with a provision of the Base Indenture, or with a provision of the Trust Indenture Act, which is required to be included in this First Supplemental Indenture, or in the Base Indenture, respectively, by any of the provisions of the Trust Indenture Act, such required provision shall control to the extent it is applicable. If any provision hereof modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this First Supplemental Indenture as so modified or to be excluded, as the case may be.
Section 11.03. Governing Law. The Indenture, including any Note Guarantees, and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.
Section 11.04. No Adverse Interpretation of Other Agreements. The Indenture may not be used to interpret another indenture or loan or debt agreement of the Operating Partnership or any Subsidiary of the Operating Partnership, and no such indenture or loan or debt agreement may be used to interpret the Indenture.
Section 11.05. Successors. All agreements of the Operating Partnership or any Guarantor in the Indenture and the Notes will bind its successors. All agreements of the Trustee in the Indenture will bind its successor.
Section 11.06. Duplicate Originals. The parties may sign any number of copies of the Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
Section 11.07. Separability. In case any provision in the Indenture or in the Notes is invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.
Section 11.08. Table of Contents and Headings. The Table of Contents and headings of the Articles and Sections herein have been inserted for convenience of reference only, are not to be considered a part of the Indenture and in no way modify or restrict any of the terms and provisions of the Indenture.
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Section 11.09. No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders. Section 118 of the Base Indenture is hereby amended and restated in full, with respect to the Notes, to read as follows:
“No recourse for the payment of the principal of, premium, if any, or interest on any of the Notes or for any claim based thereon or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or agreement of the Operating Partnership or the Company in the Indenture, or in any of the Notes or because of the creation of any Indebtedness represented thereby, shall be had against any incorporator, partner, stockholder, officer, director, employee or controlling person of the Operating Partnership, the Company or the Subsidiary Guarantors or of any successor Person thereof in their capacity as such. The waiver and release are part of the consideration for issuance of the Notes.”
Section 11.10. Trustee Not Responsible for Recitals or Issuance of Notes. The recitals contained herein and in the Notes, except the Trustee’s certificate of authentication, shall be taken as the statements of the Operating Partnership, 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 First Supplemental Indenture or of the Notes, except that the Trustee represents that it is duly authorized to execute and deliver this First Supplemental Indenture, authenticate the Notes and perform its obligations hereunder. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Operating Partnership of the Notes or the proceeds thereof.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused the First Supplemental Indenture to be duly executed as of the date first written above.
| DUPONT FABROS TECHNOLOGY, L.P., a Maryland limited partnership, as Issuer | ||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its sole General Partner | |||
| By: | /s/ Richard A. Montfort | |||
| Name: | Rick Montfort | |||
| Title | Executive Vice President General Counsel and Secretary | |||
| DUPONT FABROS TECHNOLOGY, INC., a Maryland corporation, as Guarantor | ||
| By: | /s/ Richard A. Montfort | |
| Name: | Rick Montfort | |
| Title | Executive Vice President General Counsel and Secretary | |
| THE FOLLOWING PARTIES AS SUBSIDIARY GUARANTORS: | ||||||||
| GRIZZLY EQUITY LLC, a Delaware limited liability company, | ||||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort | |||||||
| Name: | Rick Montfort | |||||||
| Title | Executive Vice President General Counsel and Secretary | |||||||
| GRIZZLY VENTURES LLC, a Delaware limited liability company | ||||||||
| By: | Grizzly Equity LLC, a Delaware limited liability company, its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort | |||||||
| Name: | Rick Montfort | |||||||
| Title | Executive Vice President General Counsel and Secretary | |||||||
| LEMUR PROPERTIES LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort | |||||
| Name: | Rick Montfort | |||||
| Title | Executive Vice President General Counsel and Secretary | |||||
| PORPOISE VENTURES LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort | |||||
| Name: | Rick Montfort | |||||
| Title | Executive Vice President General Counsel and Secretary | |||||
| RHINO EQUITY LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort | |||||
| Name: | Rick Montfort | |||||
| Title | Executive Vice President General Counsel and Secretary | |||||
| TARANTULA INTERESTS LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort | |||||
| Name: | Rick Montfort | |||||
| Title | Executive Vice President General Counsel and Secretary | |||||
| TARANTULA VENTURES LLC, a Delaware limited liability company | ||||||||
| By: | Tarantula Interests LLC, a Delaware limited liability company its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort | |||||||
| Name: | Rick Montfort | |||||||
| Title | Executive Vice President General Counsel and Secretary | |||||||
| WHALE HOLDINGS LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort | |||||
| Name: | Rick Montfort | |||||
| Title | Executive Vice President General Counsel and Secretary | |||||
| WHALE INTERESTS LLC, a Delaware limited liability company | ||||||||
| By: | Whale Holdings LLC, a Delaware limited liability company, its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort | |||||||
| Name: | Rick Montfort | |||||||
| Title | Executive Vice President General Counsel and Secretary | |||||||
| WHALE VENTURES LLC, a Delaware limited liability company | ||||||||||
| By: | Whale Interests LLC, a Delaware limited liability company, its Managing Member | |||||||||
| By: | Whale Holdings LLC, a Delaware limited liability company, its Managing Member | |||||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||||
| By: | /s/ Richard A. Montfort | |||||||||
| Name: | Rick Montfort | |||||||||
| Title | Executive Vice President General Counsel and Secretary | |||||||||
| YAK MANAGEMENT LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort | |||||
| Name: | Rick Montfort | |||||
| Title | Executive Vice President General Counsel and Secretary | |||||
| YAK INTERESTS LLC, a Delaware limited liability company | ||||||||
| By: | Yak Management LLC, a Delaware limited liability company, its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort | |||||||
| Name: | Rick Montfort | |||||||
| Title | Executive Vice President General Counsel and Secretary | |||||||
| XERES MANAGEMENT LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort | |||||
| Name: | Rick Montfort | |||||
| Title | Executive Vice President General Counsel and Secretary | |||||
| XERES INTERESTS LLC, a Delaware limited liability company | ||||||||
| By: | Xeres Management LLC, a Delaware limited liability company, its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort | |||||||
| Name: | Rick Montfort | |||||||
| Title | Executive Vice President General Counsel and Secretary | |||||||
| XERES VENTURES LLC, a Delaware limited liability company | ||||||||
| By: | Xeres Management LLC, a Delaware limited liability company, its Managing Member | |||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||||
| By: | /s/ Richard A. Montfort | |||||||
| Name: | Rick Montfort | |||||||
| Title | Executive Vice President General Counsel and Secretary | |||||||
| FOX PROPERTIES LLC, a Delaware limited liability company | ||||||
| By: | DuPont Fabros Technology, L.P., a Maryland limited partnership, its Managing Member | |||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its General Partner | |||||
| By: | /s/ Richard A. Montfort | |||||
| Name: | Rick Montfort | |||||
| Title | Executive Vice President General Counsel and Secretary | |||||
| U.S. BANK NATIONAL ASSOCIATION as Trustee | ||||
| By: | /s/ Raymond S. Haverstock | |||
| Name: | Raymond S. Haverstock | |||
| Title: | Vice President | |||
EXHIBIT A
[FACE OF NOTE]
DUPONT FABROS TECHNOLOGY, L.P.
5.625% Senior Note Due 2023
| CUSIP | ||
| No. | $ | |
DuPont Fabros Technology, L.P., a Maryland limited partnership (the “Operating Partnership”, which term includes any successor under the Indenture hereinafter referred to), for value received, promises to pay to , or its registered assigns, the principal sum of DOLLARS ($ ) [or such other amount as indicated on the Schedule of Exchange of Notes attached hereto]1 on June 15, 2023.
Initial Interest Rate: 5.625% per annum.
Interest Payment Dates: June 15 and December 15, commencing December 15, 2015.
Regular Record Dates: June 1 and December 1.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which will for all purposes have the same effect as if set forth at this place.
| 1 | For Global Notes. |
A-1
IN WITNESS WHEREOF, the Operating Partnership has caused this Note to be signed manually or by facsimile by its duly authorized officers.
Date:
| DUPONT FABROS TECHNOLOGY, L.P. | ||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its sole General Partner | |||
| By: | ||||
| Name: | ||||
| Title: | ||||
A-2
(Form of Trustee’s Certificate of Authentication)
This is one of the 5.625% Senior Notes Due 2023 designated therein referred to in the within-mentioned Indenture.
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
Dated:
A-3
[REVERSE SIDE OF NOTE]
DUPONT FABROS TECHNOLOGY, L.P.
5.625% Senior Note Due 2023
| 1. | Principal and Interest. |
The Operating Partnership promises to pay the principal of this Note on June 15, 2023.
The Operating Partnership promises to pay interest on the principal amount of this Note on each interest payment date, as set forth on the face of this Note, at the rate of 5.625% per annum.
Interest will be payable semiannually (to the Holders of record of the Notes at the close of business on the June 1 or December 1 immediately preceding the interest payment date) on each interest payment date, commencing December 15, 2015.
Interest on this Note will accrue from the most recent date to which interest has been paid on this Note (or, if there is no existing default in the payment of interest and if this Note is authenticated between a regular record date and the next interest payment date, from such interest payment date) or, if no interest has been paid, from [the Issue Date].1 Interest will be computed in the basis of a 360-day year of twelve 30-day months.
The Operating Partnership will pay interest on overdue principal, premium, if any, and interest at a rate per annum of 5.625%. Interest not paid when due and any interest on principal, premium or interest not paid when due will be paid to the Persons that are Holders on a special record date, which will be the 15th day preceding the date fixed by the Operating Partnership for the payment of such interest, whether or not such day is a Business Day. At least 15 days before a special record date, the Operating Partnership will send to each Holder and to the Trustee a notice that sets forth the special record date, the payment date and the amount of interest to be paid.
| 2. | Indentures; Note Guarantee. |
This is one of the Notes issued under an Indenture, dated as of June 9, 2015 (the “Base Indenture”), as supplemented by the First Supplemental
| 1 | For additional Notes, if interest has been paid on the Initial Notes, the last date on which interest has been paid on the Initial Notes. |
A-4
Indenture, dated as of June 9, 2015 (the “First Supplemental Indenture” and together with the Base Indenture, the “Indenture”), among the Operating Partnership, the Guarantors party thereto and U.S. Bank National Association, as Trustee. Capitalized terms used herein are used as defined in the Indenture unless otherwise indicated. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act. The Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of all such terms. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this Note and the terms of the Indenture, the terms of the Indenture will control.
The Notes are general unsecured obligations of the Operating Partnership. The original principal amount of the Notes is $250,000,000, but the Operating Partnership may, without the consent of holders of the Notes, increase the principal amount of the Notes by issuing additional Notes in the future on the same terms and conditions as the existing Notes, except for any difference in the issue price, issue date, interest accrued prior to the issue date of the additional Notes, and, if applicable, the first Interest Payment Date and the initial interest accrual date, and with the same CUSIP number as the existing Notes so long as such additional Notes are fungible for U.S. federal income tax purposes with the existing Notes. This Note is guaranteed as set forth in the Indenture.
| 3. | Redemption and Repurchase; Discharge Prior to Redemption or Maturity. |
This Note is subject to optional redemption, and may be the subject of an Offer to Purchase, as further described in the Indenture. There is no sinking fund applicable to this Note.
If the Operating Partnership deposits with the Trustee money or U.S. Government Obligations sufficient to pay the then outstanding principal of, premium, if any, and accrued interest on the Notes to redemption or maturity, the Operating Partnership may in certain circumstances be discharged from the Indenture and the Notes or may be discharged from certain of its obligations under certain provisions of the Indenture.
| 4. | Registered Form; Denominations; Transfer; Exchange. |
The Notes are in registered form without coupons in denominations of $2,000 in principal amount and any higher integral multiple of $1,000. A Holder may register the transfer or exchange of Notes in accordance with the Indenture. The Trustee may require a Holder to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. Pursuant to the Indenture, there are certain periods during which the Trustee will not be required to issue, register the transfer of or exchange any Note or certain portions of a Note.
A-5
| 5. | Defaults and Remedies. |
If an Event of Default, as defined in the Indenture, occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the Notes may declare all the Notes to be due and payable. If a bankruptcy default with respect to the Operating Partnership or the Company occurs and is continuing, the Notes automatically become due and payable. Holders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, Holders of at least a majority in principal amount of the Notes then outstanding may direct the Trustee in its exercise of remedies.
| 6. | Amendment and Waiver. |
Subject to certain exceptions, the Indenture and the Notes may be amended, or default may be waived, with the consent of the Holders of at least a majority in principal amount of the outstanding Notes. Without notice to or the consent of any Holder, the Operating Partnership, Company and the Trustee may amend or supplement the Indenture or the Notes to, among other things, cure any ambiguity, defect, omission or inconsistency.
| 7. | Authentication. |
This Note is not valid until the Trustee (or Authenticating Agent) signs the certificate of authentication on the other side of this Note.
| 8. | Governing Law. |
This Note shall be governed by, and construed in accordance with, the laws of the State of New York.
| 9. | 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).
The Operating Partnership will furnish a copy of the Indenture to any Holder upon written request and without charge.
A-6
[FORM OF TRANSFER NOTICE]
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s), assign(s) and transfer(s) unto
Insert Taxpayer Identification No.
Please print or typewrite name and address including zip code of assignee
the within Note and all rights thereunder, hereby irrevocably constituting and appointing
attorney to transfer said Note on the books of the Operating Partnership with full power of substitution in the premises.
A-7
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have all of this Note purchased by the Operating Partnership pursuant to Section 4.09 or Section 4.10 of the First Supplemental Indenture, check the box:
If you wish to have a portion of this Note purchased by the Operating Partnership pursuant to Section 4.09 or Section 4.10 of the First Supplemental Indenture, state the amount (in original principal amount) below:
$ .
Date:
Your Signature:
(Sign exactly as your name appears on the other side of this Note)
Signature Guarantee:2
| 2 | Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Trustee, which requirements include membership or participation in the Securities Transfer Association Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Trustee in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
A-8
SCHEDULE OF EXCHANGES OF NOTES1
The following exchanges of a part of this Global Note for Physical Notes or a part of another Global Note have been made:
| Date of Exchange |
Amount of decrease in principal amount of this Global Note |
Amount of increase in principal amount of this Global Note |
Principal amount of this Global Note following such decrease (or increase) |
Signature of authorized officer of Trustee | ||||
| 1 | For Global Notes |
A-9
EXHIBIT B
SUPPLEMENTAL INDENTURE
dated as of , among
DuPont Fabros Technology, L.P.,
as Issuer
the Guarantor[s] Party Hereto
and
DuPont Fabros Technology, Inc.,
as Trustee
5.625% Senior Notes due 2023
B-1
THIS SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), entered into as of , , among DuPont Fabros Technology, L.P., a Maryland limited partnership (the “Operating Partnership”), [insert each Guarantor executing this Supplemental Indenture and its jurisdiction of incorporation] (each an “Undersigned”) and U.S. Bank National Association, as trustee (the “Trustee”).
RECITALS
WHEREAS, the Operating Partnership, the Guarantors party thereto and the Trustee entered into an Indenture, dated as of June 9, 2015 (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated as of June 9, 2015 (the “First Supplemental Indenture” and together with the Base Indenture, the “Indenture”), relating to the Operating Partnership’s 5.625% Senior Notes due 2023 (the “Notes”);
WHEREAS, as a condition to the Trustee entering into the Indenture and the purchase of the Notes by the Holders, the Operating Partnership agreed pursuant to the Indenture not to permit any of its Restricted Subsidiaries (including a newly created or acquired one), directly or indirectly, to Guarantee any Indebtedness of the Operating Partnership or any Restricted Subsidiary, unless such Restricted Subsidiary provided a Guarantee of the Notes (subject to limited exceptions).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and intending to be legally bound, the parties to this Supplemental Indenture hereby agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined herein are used as defined in the Indenture.
Section 2. Each Undersigned, by its execution of this Supplemental Indenture, agrees to be a Guarantor under the Indenture and to be bound by the terms of the Indenture applicable to Guarantors, including, but not limited to, Article 10 of the First Supplemental Indenture and Article Sixteen of the Base Indenture.
Section 3. This Supplemental Indenture shall be governed by and construed in accordance with the laws of the State of New York.
Section 4. This Supplemental Indenture may be signed in various counterparts which together will constitute one and the same instrument.
B-1
Section 5. This Supplemental Indenture is an amendment supplemental to the Indenture and the Indenture and this Supplemental Indenture will henceforth be read together.
Section 6. The recitals contained in this Supplemental Indenture shall be taken as the statements of the Operating Partnership, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Supplemental Indenture, except that the Trustee represents that it is duly authorized to execute and deliver this Supplemental Indenture and perform its obligations hereunder.
B-2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
| DUPONT FABROS TECHNOLOGY, L.P., a Maryland limited partnership, as Issuer | ||||||
| By: | DuPont Fabros Technology, Inc., a Maryland corporation, its sole General Partner | |||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| [GUARANTOR[S]] | ||
| By: | ||
| Name: | ||
| Title: | ||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: | ||
| Name: | ||
| Title: | ||
B-3
EXHIBIT C
DTC 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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS A BENEFICIAL INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE INDENTURE.
C-1
Exhibit 5.1
|
Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 T +1 202 637 5600 F +1 202 637 5910 www.hoganlovells.com |
June 9, 2015
Board of Directors
DuPont Fabros Technology, Inc.
1212 New York Avenue, NW
Suite 900
Washington, DC 20005
Gentlemen:
We are acting as counsel to DuPont Fabros Technology, Inc., a Maryland corporation (the “Company”), DuPont Fabros Technology, L.P., a Maryland limited partnership (the “Operating Partnership”) and the Company’s subsidiaries listed on Schedule I attached hereto (the “Subsidiary Guarantors” and, together with the Company, the “Guarantors”), in connection with the Underwriting Agreement, dated June 4, 2015 (the “Underwriting Agreement”), among the Operating Partnership, the Guarantors and SunTrust Robinson Humphrey, Inc., as representative of the several underwriters listed in Schedule I attached thereto (collectively, the “Underwriters”) relating to the issuance by the Operating Partnership of $250,000,000 aggregate principal amount of its 5.625% Senior Notes due 2023 (the “Notes”), and the guarantees as to payment of principal, premium, if any, and interest (the “Guarantees”) by each of the Guarantors, pursuant to the Company’s and the Operating Partnership’s automatic shelf registration statement on Form S-3 (File No. 333-204635) filed with the Securities and Exchange Commission on June 2, 2015 (the “Registration Statement”). This opinion letter is furnished to you at your request to enable you to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. §229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of such agreements, instruments and documents as we have deemed an appropriate basis on which to render the opinions hereinafter expressed. In our examination of the aforesaid documents, we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the accuracy and completeness of all documents submitted to us, the authenticity of all original documents and the conformity to authentic original documents of all documents submitted to us as copies (including telecopies). As to all matters of fact, we have relied on the representations and statements of fact made in the documents so reviewed, and we have not independently established the facts so relied on. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
For the purposes of this opinion letter, we have assumed that (i) U.S. Bank National Association, as trustee (the “Trustee”) under the Indenture, dated as of June 9, 2015, by and among the Operating Partnership, the Guarantors and the Trustee (the “Base Indenture”), filed
Hogan Lovells US LLP is a limited liability partnership registered in the District of Columbia. “Hogan Lovells” is an international legal practice that includes Hogan Lovells US LLP and Hogan Lovells International LLP, with offices in: Alicante Amsterdam Baltimore Beijing Berlin Brussels Caracas Colorado Springs Denver Dubai Dusseldorf Frankfurt Hamburg Hanoi Ho Chi Minh City Hong Kong Houston London Los Angeles Madrid Miami Milan Moscow Munich New York Northern Virginia Paris Philadelphia Prague Rome San Francisco Shanghai Silicon Valley Singapore Tokyo Ulaanbaatar Warsaw Washington DC Associated offices: Budapest Jakarta Jeddah Riyadh Zagreb. For more information see www.hoganlovells.com
| Board of Directors DuPont Fabros Technology, Inc. |
Page 2 | June 9, 2015 |
as Exhibit 4.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 9, 2015 and incorporated into the Registration Statement by reference, as supplemented by the First Supplemental Indenture, dated as of June 9, 2015 (the “First Supplemental Indenture,” and together with the Base Indenture, the “Indenture”), filed as Exhibit 4.2 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on June 9, 2015 and incorporated into the Registration Statement by reference, has all requisite power and authority under all applicable laws, regulations and governing documents to execute, deliver and perform its obligations under the Indenture and has complied with all legal requirements pertaining to its status as such status relates to the Trustee’s right to enforce the Indenture against the Operating Partnership and the Guarantors, (ii) the Trustee has duly authorized, executed and delivered the Indenture, (iii) the Trustee is validly existing and in good standing in all necessary jurisdictions, (iv) the Indenture constitutes a valid and binding obligation, enforceable against the Trustee in accordance with its terms, (v) there has been no material mutual mistake of fact or misunderstanding or fraud, duress or undue influence in connection with the negotiation, execution and delivery of the Indenture, and the conduct of all parties to the Indenture has complied with any requirements of good faith, fair dealing and conscionability, and (vi) there are and have been no agreements or understandings among the parties, written or oral, and there is and has been no usage of trade or course of prior dealing among the parties that would, in either case, define, supplement or qualify the terms of the Indenture. We also have assumed the validity and constitutionality of each relevant statute, rule, regulation and agency action covered by this opinion letter.
This opinion letter is based as to matters of law solely on the applicable provisions of the laws of the State of New York (but not including any laws, statutes, ordinances, administrative decisions, rules or regulations of any political subdivision below the state level), as currently in effect. We express no opinion herein as to any other laws, statutes, ordinances, rules or regulations (and in particular, we express no opinion as to any effect that such other laws, statutes, ordinances, rules or regulations may have on the opinions expressed herein.
Based upon, subject to and limited by the foregoing, we are of the opinion that:
(a) the Notes have been duly authorized on behalf of the Operating Partnership and, following (i) receipt by the Operating Partnership of the consideration for the Notes specified in the resolutions of the Board of Directors of the Company and the Pricing Committee of the Board of Directors of the Company and the Underwriting Agreement and (ii) the due execution, authentication, issuance and delivery of the Notes pursuant to the terms of the Indenture, the Notes will constitute valid and binding obligations of the Operating Partnership; and
(b) the Guarantees have been duly authorized on behalf of each of the Guarantors and following (i) receipt by the Operating Partnership of the consideration for the Notes specified in the resolutions of the Board of Directors of the Company and the Pricing Committee of the Board of Directors of the Company and the Underwriting Agreement and (ii) the due execution, authentication, issuance and delivery of the Notes pursuant to the terms of the Indenture, the Guarantees will constitute valid and binding obligations of the Guarantors.
This opinion letter has been prepared for use in connection with the filing by the Company of a Current Report on Form 8-K on the date hereof, which Form 8-K will be incorporated by reference into the Registration Statement, and speaks as of the date hereof. We assume no obligation to advise you of any changes in the foregoing subsequent to the delivery of this letter.
| Board of Directors DuPont Fabros Technology, Inc. |
Page 3 | June 9, 2015 |
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the above-described Form 8-K and to the reference to this firm under the caption “Legal Matters” in the Prospectus Supplement dated June 4, 2015, which constitutes part of the Registration Statement. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ HOGAN LOVELLS US LLP
HOGAN LOVELLS US LLP
Schedule I
Subsidiary Guarantors
| Grizzly Equity LLC |
| Grizzly Ventures LLC |
| Lemur Properties LLC |
| Porpoise Ventures LLC |
| Rhino Equity LLC |
| Tarantula Interests LLC |
| Tarantula Ventures LLC |
| Whale Holdings LLC |
| Whale Interests LLC |
| Whale Ventures LLC |
| Yak Management LLC |
| Yak Interests LLC |
| Xeres Management LLC |
| Xeres Interests LLC |
| Xeres Ventures LLC |
| Fox Properties LLC |
Exhibit 8.1
|
|
Hogan Lovells US LLP Columbia Square 555 Thirteenth Street, NW Washington, DC 20004 T +1 202 637 5600 F +1 202 637 5910 www.hoganlovells.com |
June 9, 2015
Board of Directors
DuPont Fabros Technology, Inc.
1212 New York Avenue, NW
Suite 900
Washington, DC 20005
Ladies and Gentlemen:
We are acting as tax counsel to DuPont Fabros Technology, Inc., a Maryland corporation (the “Company”) and DuPont Fabros Technology, L.P., a Maryland limited partnership (the “Operating Partnership”) in connection with the filing by the Operating Partnership of the preliminary prospectus supplement dated June 9, 2015 (the “Preliminary Prospectus Supplement”) and the final prospectus supplement dated June 9, 2015 (together with the Preliminary Prospectus Supplement, the “Prospectus Supplement”) relating to the issuance by the Operating Partnership of $250,000,000 aggregate principal amount of 5.625% Senior Notes due 2023 (the “Securities”) pursuant to the Company’s automatic shelf registration statement on Form S-3 (File No. 333-204635) filed with the Securities and Exchange Commission on June 2, 2015 (the “Registration Statement”). In connection with the filing of the Company’s Form 8-K on the date hereof (the “June 9th Form 8-K”) we have been asked to provide you with this letter with respect to the discussion included in the Prospectus Supplement under the heading “Certain United States Federal Income Tax Considerations.”
Bases for Opinion
The opinion set forth in this letter is based on relevant current provisions of the Internal Revenue Code of 1986, as amended (the “Code”), Treasury Regulations thereunder (including proposed and temporary Treasury Regulations), and interpretations of the foregoing as expressed in court decisions, applicable legislative history, and the administrative rulings and practices of the Internal Revenue Service (the “IRS”), including its practices and policies in issuing private letter rulings, which are not binding on the IRS except with respect to a taxpayer that receives such a ruling, all as of the date hereof. These provisions and interpretations are subject to change by the IRS, Congress and the courts (as applicable), which may or may not be retroactive in effect and which might result in material modifications of our opinion. Our opinion does not foreclose the possibility of a contrary determination by the IRS or a court of competent jurisdiction, or of a contrary position taken by the IRS or the Treasury Department in regulations or rulings issued in the future. In this regard, an opinion of counsel with respect to an issue represents counsel’s best professional judgment with respect to the outcome on the merits with respect to such issue, if such issue were to be litigated, but an opinion is not binding on the IRS or the courts, and is not a guarantee that the IRS will not assert a contrary position with respect to such issue or that a court will not sustain such a position asserted by the IRS.
Board of Directors
DuPont Fabros Technology, Inc.
June 9, 2015
Page 2
In rendering this opinion, we have examined such statutes, regulations, records, agreements, certificates and other documents as we have considered necessary or appropriate as a basis for the opinion, including, but not limited to (1) the Registration Statement; (2) the Prospectus Supplement; (3) the June 9th Form 8-K; and (4) the Prospectus Supplement) (together, these documents referred to in clauses (1) through (4), the “Reviewed Documents”).
In this regard, we have assumed with your consent the following:
| (1) | that (A) all of the representations and statements as to factual matters set forth in the Reviewed Documents are true, correct, and complete as of the date hereof, (B) any representation or statement in the Reviewed Documents made as a belief or made “to the knowledge of” or similarly qualified is true, correct and complete as of the date hereof, without such qualification, (C) each agreement described in the Reviewed Documents is valid and binding in accordance with its terms, and (D) each of the obligations of the Company, and its subsidiaries, as described in the Reviewed Documents, has been or will be performed or satisfied in accordance with its terms; |
| (2) | the genuineness of all signatures, the proper execution of all documents, the authenticity of all documents submitted to us as originals, the conformity to originals of documents submitted to us as copies, and the authenticity of the originals from which any copies were made; and |
| (3) | that any documents as to which we have reviewed only a form were or will be duly executed without material changes from the form reviewed by us. |
Any material variation or difference in the facts from those set forth in the documents that we have reviewed and upon which we have relied may adversely affect the conclusions stated herein. For purposes of rendering our opinion, we have not made an independent investigation of the facts set forth in the Reviewed Documents. We have consequently relied upon representations and information presented in such documents.
Opinion
Based upon and subject to the assumptions and qualifications set forth herein, we are of the opinion that the portions of the discussion in the Prospectus Supplement under the heading “Certain United States Federal Income Tax Considerations” that describe provisions of applicable U.S. federal income tax law are correct in all material respects as of the date hereof.
Other than as expressly stated above, we express no opinion on any issue relating to the Company or to any investment therein. In particular, we express no opinion on the Company’s qualification as a real estate investment trust under the Code, the qualification of any entities in which the Company has invested as partnerships for U.S. federal income tax purposes, or any other tax consequences that may apply to the Company or to an investment in the Company’s common stock.
This opinion letter addresses only the specific U.S. federal income tax matters set forth above and does not address any other U.S. federal, state, local or foreign legal or tax issues.
Board of Directors
DuPont Fabros Technology, Inc.
June 9, 2015
Page 3
This opinion letter has been prepared for your use in connection with the filing of the Registration Statement and speaks as of the date hereof. We assume no obligation by reason of this opinion letter or otherwise to advise you of any changes in our opinion subsequent to the effective date of the Registration Statement. Except as provided in the last paragraph, this opinion letter may not be distributed, quoted in whole or in part or otherwise reproduced in any document, or filed with any governmental agency without our express written consent.
We hereby consent to the filing of this opinion letter as Exhibit 8.1 to the June 9th Form 8-K and to the reference to Hogan Lovells US LLP under the caption “Legal Matters” in the Prospectus Supplement, which constitutes part of the Registration Statement. In giving this consent, however, we do not admit thereby that we are an “expert” within the meaning of the Securities Act of 1933, as amended.
Very truly yours,
/s/ HOGAN LOVELLS US LLP
HOGAN LOVELLS US LLP
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