US-DOCS\51573375.10 SPIRIT REALTY, L.P., SPIRIT REALTY CAPITAL, INC., AS GUARANTOR, AND U.S. BANK NATIONAL ASSOCIATION, AS TRUSTEE FIRST SUPPLEMENTAL INDENTURE DATED AS OF AUGUST 18, 2016 TO INDENTURE DATED AUGUST 18, 2016 $300,000,000 OF 4.450% NOTES...
US-DOCS\51573375.10
SPIRIT REALTY, L.P.,
SPIRIT REALTY CAPITAL, INC., AS GUARANTOR,
AND
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE
FIRST SUPPLEMENTAL INDENTURE
DATED AS OF AUGUST 18, 2016
TO INDENTURE DATED AUGUST 18, 2016
$300,000,000
OF
4.450% NOTES DUE 2026
i
US-DOCS\51573375.10
TABLE OF CONTENTS
Page
RELATION TO BASE INDENTURE; DEFINITIONS .............................................1 ARTICLE I
Section 1.1 Relation to Base Indenture. .................................................................................. 1
Section 1.2 Definitions. ........................................................................................................... 1
TERMS OF THE SECURITIES ................................................................................8 ARTICLE II
Section 2.1 Title of the Securities. .......................................................................................... 8
Section 2.2 Price. .................................................................................................................... 8
Section 2.3 Limitation on Initial Aggregate Principal Amount; Further Issuances. ............... 8
Section 2.4 Interest and Interest Rates; Stated Maturity of Notes........................................... 8
Section 2.5 Method of Payment. ............................................................................................. 8
Section 2.6 Currency. .............................................................................................................. 9
Section 2.7 Additional Notes. ................................................................................................. 9
Section 2.8 Redemption. ......................................................................................................... 9
Section 2.9 No Sinking Fund. ................................................................................................. 9
Section 2.10 Registrar and Paying Agent. ................................................................................ 9
FORM OF THE SECURITIES ...............................................................................10 ARTICLE III
Section 3.1 Global Form. ...................................................................................................... 10
Section 3.2 Transfer and Exchange. ...................................................................................... 10
REDEMPTION OF NOTES ...................................................................................20 ARTICLE IV
Section 4.1 Optional Redemption of Notes. .......................................................................... 20
Section 4.2 Notice of Optional Redemption, Selection of Notes. ......................................... 20
Section 4.3 Payment of Notes Called for Redemption by the Company. ............................. 21
GUARANTEE .........................................................................................................21 ARTICLE V
Section 5.1 Note Guarantee................................................................................................... 21
Section 5.2 Execution and Delivery of Note Guarantee. ...................................................... 22
Section 5.3 Limitation of Guarantor’s Liability. ................................................................... 22
Section 5.4 Application of Certain Terms and Provisions to the Guarantor. ........................ 22
ADDITIONAL COVENANTS ..............................................................................23 ARTICLE VI
Section 6.1 Limitations on Incurrence of Debt. .................................................................... 23
Section 6.2 Existence. ........................................................................................................... 24
Section 6.3 Xxxxxx, Consolidation or Sale. .......................................................................... 25
Section 6.4 Payment of Taxes and Other Claims. ................................................................. 25
Section 6.5 Provision of Financial Information. ................................................................... 25
Section 6.6 Maintenance of Properties. ................................................................................. 26
Section 6.7 Insurance. ........................................................................................................... 26
DEFAULTS AND REMEDIES ............................................................................26 ARTICLE VII
Section 7.1 Events of Default................................................................................................ 26
Section 7.2 Acceleration of Maturity; Rescission and Annulment. ...................................... 27
ii
US-DOCS\51573375.10
AMENDMENTS AND WAIVERS .....................................................................28 ARTICLE VIII
Section 8.1 Without Consent of Holders. .............................................................................. 28
Section 8.2 With Consent of Holders. ................................................................................... 29
MEETINGS OF HOLDERS OF NOTES ...............................................................30 ARTICLE IX
Section 9.1 Purposes for Which Meetings May Be Called. .................................................. 30
Section 9.2 Call, Notice and Place of Meetings. ................................................................... 30
Section 9.3 Persons Entitled to Vote at Meetings. ................................................................ 30
Section 9.4 Quorum; Action. ................................................................................................ 30
Section 9.5 Determination of Voting Rights; Conduct and Adjournment of Meetings.
............................................................................................................................ 31
Section 9.6 Counting Votes and Recording Action of Meetings. ......................................... 31
MISCELLANEOUS PROVISIONS ........................................................................32 ARTICLE X
Section 10.1 Evidence of Compliance with Conditions Precedent, Certificates to
Trustee. ............................................................................................................... 32
Section 10.2 No Recourse Against Others. ............................................................................. 32
Section 10.3 Trust Indenture Act Controls. ............................................................................ 32
Section 10.4 Governing Law................................................................................................... 32
Section 10.5 Counterparts. ...................................................................................................... 32
Section 10.6 Successors. ......................................................................................................... 33
Section 10.7 Severability. ....................................................................................................... 33
Section 10.8 Table of Contents, Headings, Etc. ...................................................................... 33
Section 10.9 Ratifications. ...................................................................................................... 33
Section 10.10 Effectiveness. ..................................................................................................... 33
Section 10.11 The Trustee......................................................................................................... 33
1
US-DOCS\51573375.10
THIS FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”) is
entered into as of August 18, 2016 among Spirit Realty, L.P., a Delaware limited partnership (the
“Company”), Spirit Realty Capital, Inc., a Maryland corporation, as guarantor (the
“Guarantor”), and U.S. Bank National Association, as trustee (the “Trustee”).
WITNESSETH:
WHEREAS, the Company has delivered to the Trustee an Indenture, dated as of August
18, 2016 (the “Base Indenture”), providing for the issuance by the Company from time to time of
Securities in one or more Series;
WHEREAS, Section 2.2 of the Base Indenture provides for various matters with respect to
any Series of Securities issued under the Base Indenture to be established in an indenture
supplemental to the Base Indenture;
WHEREAS, each of the Company and the Guarantor desires to execute this First
Supplemental Indenture to establish the form and to provide for the issuance of a Series of the
Company’s senior notes designated as 4.450% Notes due 2026 (the “Notes”), in an initial
aggregate principal amount of $300,000,000;
WHEREAS, the board of managers of the General Partner (as defined below) and the
board of directors of the Guarantor have each duly adopted resolutions authorizing the Company
and the Guarantor, respectively, to execute and deliver this First Supplemental Indenture; and
WHEREAS, all of the other conditions and requirements necessary to make this First
Supplemental Indenture, when duly executed and delivered, a valid and binding agreement in
accordance with its terms and for the purposes herein expressed, have been performed and
fulfilled.
THEREFORE, for and in consideration of the premises and the purchase of the Series of
Securities provided for herein by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of Securities of such Series, as follows:
ARTICLE I
RELATION TO BASE INDENTURE; DEFINITIONS
Section 1.1 Relation to Base Indenture.
This First Supplemental Indenture constitutes an integral part of the Base Indenture.
Notwithstanding any other provision of this First Supplemental Indenture, all provisions of this
First Supplemental Indenture are expressly and solely for the benefit of the Holders of the Notes
and any such provisions shall not be deemed to apply to any other Securities issued under the Base
Indenture and shall not be deemed to amend, modify or supplement the Base Indenture for any
purpose other than with respect to the Notes.
Section 1.2 Definitions.
For all purposes of this First Supplemental Indenture, except as otherwise expressly
provided for or unless the context otherwise requires:
(1) Capitalized terms used but not defined herein shall have the respective meanings
assigned to them in the Base Indenture; and
(2) All references herein to Articles and Sections, unless otherwise specified, refer to
the corresponding Articles and Sections of this First Supplemental Indenture as they amend or
supplement the Base Indenture, and not the Base Indenture or any other document.
“144A Global Note” means a Global Note substantially in the form of Exhibit A hereto bearing
the Global Note Legend and the Private Placement Legend and deposited with or on behalf of, and
registered in the name of, the Depositary or its nominee that will be issued in a denomination equal
to the outstanding principal amount of the Notes sold in reliance on Rule 144A.
2
US-DOCS\51573375.10
“Acquired Debt” means Debt of a Person (i) existing at the time such Person becomes a
Subsidiary or (ii) assumed in connection with the acquisition of assets from such Person, in each
case, other than Debt incurred in connection with, or in contemplation of, such Person becoming a
Subsidiary or such acquisition. Acquired Debt shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person becomes a Subsidiary.
“Additional Notes” means additional Notes (other than the Initial Notes) issued under the
Indenture in accordance with Sections 2.3, 2.7 and 6.1 hereof, as part of the same series as the
Initial Notes.
“Annual Service Charge” for any period means, without duplication, the maximum amount that
is payable for interest expense on, and original issue discount of, the Guarantor’s and its
Subsidiaries’ Debt in such period.
“Applicable Procedures” means, with respect to any transfer or exchange of or for beneficial
interests in any Global Note, the rules and procedures of the Depositary, Euroclear and
Clearstream that apply to such transfer or exchange.
“Authentication Order” means a Company Order to the Trustee to authenticate and deliver the
Notes, signed by an Officer of the General Partner.
“Bankruptcy Law” shall have the meaning ascribed thereto in Section 7.1.
“Broker-Dealer” has the meaning set forth in the Registration Rights Agreement.
“Business Day” means any day, other than a Saturday or Sunday, or legal holidays on which banks
in The City of New York are not required or authorized by law or executive order to be closed.
“Capital Stock” means, with respect to any Person, any and all shares, interests, participations or
other equivalents (however designated, whether voting or non-voting), including partnership or
limited liability company interests, whether general or limited, in the equity of such Person,
outstanding as of any date, including all options, warrants or other rights issued by such Person to
purchase Capital Stock of such Person.
“Clearstream” means Clearstream Banking, Société Anonyme.
“Company Order” means a written order signed in the name of the Company by an Officer of the
General Partner.
“Comparable Treasury Issue” means the United States Treasury security selected by an
Independent Investment Banker as having a maturity comparable to the remaining term
(“Remaining Life”) of the Notes to be redeemed that would be utilized, at the time of selection and
in accordance with customary financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the Remaining Life.
“Comparable Treasury Price” means, with respect to any Redemption Date, (1) the average of
the Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest
and lowest Reference Treasury Dealer Quotations, or (2) if we obtain fewer than six such
Reference Treasury Dealer Quotations, the average of all such quotations.
“Consolidated Income Available for Debt Service” for any period means Earnings from
Operations of the Guarantor and its Subsidiaries plus amounts which have been deducted, and
minus amounts which have been added, for the following (without duplication):
(a) interest expense on Debt of the Guarantor and its Subsidiaries;
(b) provision for taxes of the Guarantor and its Subsidiaries based on income;
(c) amortization of debt discount, premium and deferred financing costs;
(d) provisions for unrealized gains and losses, depreciation and amortization and the effect of
any other non-cash items;
(e) extraordinary, non-recurring and other unusual items (including, without limitation, any
3
US-DOCS\51573375.10
costs and fees incurred in connection with any debt financing or amendments thereto, or
any acquisition, disposition, recapitalization or similar transaction (regardless of whether
such transaction is completed));
(f) gains and losses resulting from the extinguishment of debt;
(g) the effect of any noncash charge resulting from a change in accounting principles in
determining Earnings from Operations for such period; and
(h) amortization of deferred charges.
“Debt” of the Guarantor or any of its Subsidiaries means any indebtedness of the Guarantor or any
of its Subsidiaries, excluding any accrued expense or trade payable, whether or not contingent, in
respect of:
(a) borrowed money evidenced by bonds, notes, debentures or similar instruments,
(b) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any security
interest existing on property owned by the Guarantor or any of its Subsidiaries, but only to
the extent of the lesser of (x) the amount of indebtedness so secured and (y) the fair market
value of the property subject to such mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Guarantor or any of its Subsidiaries,
(c) the reimbursement obligations, contingent or otherwise, in connection with any letters of
credit actually issued and called or amounts representing the balance deferred and unpaid
of the purchase price of any property or services, or all conditional sale obligations or
obligations under any title retention agreement, or
(d) any lease of property by the Guarantor or any of its Subsidiaries as lessee that is reflected
on the Guarantor’s consolidated balance sheet and classified as a finance lease in
accordance with GAAP,
and to the extent, in the case of items of indebtedness under clauses (a) and (c) of this definition,
that any such items (other than letters of credit) would appear as a liability on the Guarantor’s
consolidated balance sheet in accordance with GAAP, and also includes, to the extent not
otherwise included, any obligation by the Guarantor or any of its Subsidiaries to be liable for, or to
pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course
of business), Debt of another Person (other than the Guarantor or any of its Subsidiaries);
provided, however, that the term “Debt” shall not include Permitted Non-Recourse Guarantees of
the Guarantor or any of its Subsidiaries until such time as they become primary obligations of, and
payments are due and required to be made thereunder by, the Guarantor or any of its Subsidiaries.
“Defaulted Interest” shall have the meaning ascribed thereto in Section 2.5.
“Definitive Note” means a certificated Note registered in the name of the Holder thereof and
issued in accordance with Section 3.2, substantially in the form of Exhibit A hereto except that
such Note shall not bear the Global Note legend and shall not have the “Schedule of Exchanges of
Interests in the Global Note” attached thereto.
“Depositary” means, with respect to the Notes, the Depositary Trust Company and any successor
thereto.
“Earnings from Operations” for any period means net income excluding gains and losses on
sales of investments, net, as reflected in the financial statements of the Guarantor and its
Subsidiaries for such period determined on a consolidated basis in accordance with GAAP.
“Encumbrance” means any mortgage, pledge, lien, charge, encumbrance or any security interest
existing on property owned by the Guarantor or any of its Subsidiaries securing indebtedness for
borrowed money, other than a Permitted Encumbrance.
“Euroclear” means Euroclear S.A./N.V., as operator of the Euroclear system.
“Event of Default” shall have the meaning ascribed thereto in Section 7.1.
4
US-DOCS\51573375.10
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
“Exchange Notes” means the notes issued in the Exchange Offer pursuant to Section 3.2(f).
“Exchange Offer” has the meaning set forth in the Registration Rights Agreement.
“Exchange Offer Registration Statement” has the meaning set forth in the Registration Rights
Agreement.
“GAAP” means generally accepted accounting principles as used in the United States applied on a
consistent basis as in effect from time to time.
“General Partner” means Spirit General OP Holdings, LLC, a Delaware limited liability
company and the sole general partner of the Company.
“Global Note Legend” means the legend set forth in Section 3.2(g)(2), which is required to be
placed on all Global Notes issued under the Indenture.
“Global Notes” means, individually and collectively, each of the Restricted Global Notes and the
Unrestricted Global Notes deposited with or on behalf of and registered in the name of the
Depositary or its nominee, substantially in the form of Exhibit A hereto and that bears the Global
Note Legend and that has the “Schedule of Exchanges of Interests in the Global Note” attached
thereto, issued in accordance with the Indenture.
“Holders” shall have the meaning ascribed thereto in Section 2.4.
“Indenture” means the Base Indenture, as supplemented by this First Supplemental Indenture,
and as further supplemented, amended or restated.
“Independent Investment Banker” means one of the Reference Treasury Dealers that we
appoint to act as the Independent Investment Banker from time to time.
“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a
Participant.
“Initial Notes” means the first $300,000,000 aggregate principal amount of Notes issued under
this First Supplemental Indenture on the date hereof.
“interest” means, when used with reference to the Notes, any interest payable under the terms of
the Notes, including Liquidated Damages, if any, payable under the terms of the Registration
Rights Agreement.
“Interest Payment Date” shall have the meaning ascribed thereto in Section 2.4.
“Letter of Transmittal” means the letter of transmittal to be prepared by the Company and sent to
all Holders of the Notes for use by such Holders in connection with the Exchange Offer.
“Liquidated Damages” means all liquidated damages then owing pursuant to the Registration
Rights Agreement.
“Make-Whole Premium” means, with respect to any Note redeemed before June 15, 2026, the
excess, if any, of (a) the sum of the present values of the remaining scheduled payments of
principal and interest thereon (exclusive of interest accrued to the date of redemption) that would
be due if the Notes matured on June 15, 2026, determined by discounting to the Redemption Date,
on a semiannual basis, such principal and interest at the Treasury Rate plus 45 basis points; over
(b) the principal amount of such Notes.
“Non-Recourse Debt” means Debt of a joint venture or Subsidiary of the Company (or an entity
in which the Company is the general partner or managing member) that is directly or indirectly
secured by real estate assets or other real estate-related assets (including Capital Stock) of the joint
venture or Subsidiary of the Company (or entity in which the Company is the general partner or
managing member) that is the borrower and is non-recourse to the Guarantor or any of its
Subsidiaries (other than pursuant to a Permitted Non-Recourse Guarantee and other than with
5
US-DOCS\51573375.10
respect to the joint venture or Subsidiary of the Company (or entity in which the Company is the
general partner or managing member) that is the borrower); provided further that, if any such Debt
is partially recourse to the Guarantor or any of its Subsidiaries (other than pursuant to a Permitted
Non-Recourse Guarantee and other than with respect to the joint venture or Subsidiary of the
Company (or entity in which the Company is the general partner or managing member) that is the
borrower) and therefore does not meet the criteria set forth above, only the portion of such Debt
that does meet the criteria set forth above shall constitute “Non-Recourse Debt.”
“Non-U.S. Person” means a Person who is not a U.S. Person.
“Note Guarantee” means the Guarantee by the Guarantor of the Company’s obligations under the
Indenture and the Notes, executed pursuant to the provisions of this First Supplemental Indenture.
“Notes” has the meaning assigned to it in the preamble to the Indenture. The Initial Notes and the
Additional Notes shall be treated as a single class for all purposes under the Indenture, and unless
the context otherwise requires, all references to the Notes shall include the Initial Notes and any
Additional Notes.
“Officer” means the Chief Executive Officer, President, the Chief Financial Officer, the Chief
Operating Officer, the Treasurer or any Assistant Treasurer, the Secretary or any Assistant
Secretary, and any Vice President of the General Partner or the Guarantor, as applicable.
“Officer’s Certificate” means a certificate signed by any Officer of the General Partner on behalf
of the Company or the Guarantor, as applicable.
“Opinion of Counsel” means a written opinion of legal counsel who is acceptable to the Trustee.
The counsel may be an employee of or counsel to the Company or the Guarantor.
“Participant” means, with respect to the Depositary, Euroclear or Clearstream, a Person who has
an account with the Depositary, Euroclear or Clearstream, respectively (and with respect to the
Depositary Trust Company, shall include Euroclear and Clearstream).
“Permitted Encumbrances” means leases, Encumbrances securing taxes, assessments and
similar charges, mechanics liens and other similar Encumbrances.
“Permitted Non-Recourse Guarantees” means customary completion or budget guarantees,
indemnities or other customary guarantees provided to lenders (including by means of separate
indemnification agreements, carve-out guarantees or pledges of the equity interests in the
borrower) under such Non-Recourse Debt in the ordinary course of business of the Guarantor or
any of its Subsidiaries in financing transactions that are directly or indirectly secured by real estate
assets or other real estate-related assets (including Capital Stock) of a joint venture or Subsidiary
of the Company (or an entity in which the Company is the general partner or managing member),
in each case that is the borrower in such financing, but is non-recourse to Guarantor or any of its
other Subsidiaries, except for such completion or budget guarantees, indemnities or other
guarantees (including by means of separate indemnification agreements or carve-out guarantees or
pledges of the equity interests in the borrower) as are consistent with customary industry practice
(such as environmental indemnities and recourse triggers based on violation of transfer restrictions
and other customary exceptions to non-recourse liability).
“Person” means any individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization or government or any agency
or political subdivision thereof.
“Primary Treasury Dealer” shall have the meaning ascribed thereto in the definition of
“Reference Treasury Dealer.”
“Private Placement Legend” means the legend set forth in Section 3.2(g)(1) to be placed on all
Notes issued under the Indenture except where otherwise permitted by the provisions of the
Indenture.
“QIB” means a “qualified institutional buyer” as defined in Rule 144A.
“Record Date” shall have the meaning ascribed thereto in Section 2.4.
6
US-DOCS\51573375.10
“Redemption Date” means, with respect to any Note or portion thereof to be redeemed in
accordance with the provisions of Section 4.1, the date fixed for such redemption in accordance
with the provisions of Section 4.1.
“Redemption Price” shall have the meaning ascribed thereto in Section 4.1.
“Reference Treasury Dealer” means each of X.X. Xxxxxx Securities LLC, Xxxxx Fargo Securities
LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx Xxxxxxx & Co. LLC and
their successors, and three other firms that are primary U.S. government securities dealers (each, a
“Primary Treasury Dealer”) which we specify from time to time; provided, however, that if any
of them ceases to be a Primary Treasury Dealer, we will substitute another Primary Treasury
Dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury
Dealer and any Redemption Date, the average of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to
the trustee by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
“Registration Rights Agreement” means the Registration Rights Agreement, dated as of the date
hereof, by and among the Company, the Guarantor and the other parties named on the signature
pages thereof, as such agreement may be amended, modified or supplemented from time to time
and, with respect to any Additional Notes, one or more registration rights agreements among the
Company, the Guarantors and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights given by the Company to the
purchasers of Additional Notes to register such Additional Notes under the Securities Act.
“Regulation S” means Regulation S promulgated under the Securities Act.
“Regulation S Global Note” means a Global Note substantially in the form of Exhibit A hereto
bearing the Global Note Legend and the Private Placement Legend and deposited with or on behalf
of and registered in the name of the Depositary or its nominee, issued in a denomination equal to
the outstanding principal amount of the Notes sold in reliance on Rule 903 or Rule 904 of
Regulation S.
“Remaining Life” shall have the meaning ascribed thereto in the definition of “Comparable
Treasury Issue.”
“Restricted Definitive Note” means a Definitive Note bearing the Private Placement Legend.
“Restricted Global Note” means a Global Note bearing the Private Placement Legend.
“Restricted Period” means the 40-day distribution compliance period as defined in Regulation S.
“Rule 144” means Rule 144 under the Securities Act (including any successor rule thereto), as the
same may be amended from time to time.
“Rule 144A” means Rule 144A under the Securities Act (including any successor rule thereto), as
the same may be amended from time to time.
“Rule 903” means Rule 903 under the Securities Act (including any successor rule thereto), as the
same may be amended from time to time.
“Rule 904” means Rule 904 under the Securities Act (including any successor rule thereto), as the
same may be amended from time to time.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.
“Significant Subsidiary” shall have the meaning ascribed thereto in Section 7.1.
“Subsidiary” means, with respect to any Person, (i) a corporation, partnership, joint venture,
7
US-DOCS\51573375.10
limited liability company or other entity the majority of the shares, if any, of the non-voting capital
stock or other equivalent ownership interests of which (except directors’ qualifying shares) are at
the time directly or indirectly owned by such Person and/or any other Subsidiary or Subsidiaries of
such Person, and the majority of the shares of the voting capital stock or other equivalent
ownership interests of which (except directors’ qualifying shares) are at the time directly or
indirectly owned by such Person and/or any other Subsidiary or Subsidiaries of such Person, and
(ii) any other entity the accounts of which are consolidated with the accounts of such Person. For
the purposes of this definition, “voting capital stock” means capital stock having voting power for
the election of directors, whether at all times or only so long as no senior class of capital stock has
such voting power by reason of any contingency.
“Total Assets” means, as of any date, the sum of (i) Undepreciated Real Estate Assets and (ii) all
of the Guarantor’s and its Subsidiaries’ other assets, but excluding accounts receivable and
non-real estate intangibles, determined in accordance with GAAP.
“Total Unencumbered Assets” means the sum of the Guarantor’s and its Subsidiaries’
Undepreciated Real Estate Assets and the value determined in accordance with GAAP of all of the
Guarantor’s and its Subsidiaries’ other assets, other than accounts receivable and non-real estate
intangibles, in each case not subject to an Encumbrance; provided, however, that “Total
Unencumbered Assets” does not include investments in unconsolidated joint ventures,
unconsolidated limited partnerships, unconsolidated limited liability companies and other
unconsolidated entities.
“Treasury Rate” means, with respect to any Redemption Date, the rate per year equal to: (1) the
yield, under the heading which represents the average for the immediately preceding week,
appearing in the most recently published statistical release designated “H.15 (519)” or any
successor publication which is published weekly by the Board of Governors of the Federal
Reserve System and which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity
corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three
months before or after the Remaining Life of the Notes to be redeemed, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue shall be
determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a
straight line basis, rounding to the nearest month; or (2) if such release (or any successor release) is
not published during the week preceding the calculation date or does not contain such yields, the
rate per year equal to the semiannual equivalent yield to maturity of the Comparable Treasury
Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for such Redemption Date. The
Treasury Rate shall be calculated on the third Business Day preceding the Redemption Date. In the
case of a satisfaction and discharge, such rates shall be determined as of the date of the deposit
with the Trustee.
“Undepreciated Real Estate Assets” as of any date means the cost (original cost plus capital
improvements) of real estate assets of the Guarantor and its Subsidiaries on such date, before
depreciation and amortization charges determined on a consolidated basis in accordance with
GAAP.
“Uniform Fraudulent Conveyance Act” means any applicable federal, provincial or state
fraudulent conveyance legislation and any successor legislation.
“Uniform Fraudulent Transfer Act” means any applicable federal, provincial or state fraudulent
transfer legislation and any successor legislation.
“Unrestricted Definitive Note” means a Definitive Note that does not bear and is not required to
bear the Private Placement Legend.
“Unrestricted Global Note” means a Global Note that does not bear and is not required to bear
the Private Placement Legend.
“U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the Securities
Act.
“Unsecured Debt” means Debt of the types described in clauses (a) and (c) of the definition
8
US-DOCS\51573375.10
thereof that is not secured by any mortgage, pledge, lien, charge, encumbrance or security interest
of any kind upon any of the properties of the Guarantor or any of its Subsidiaries.
ARTICLE II
TERMS OF THE SECURITIES
Section 2.1 Title of the Securities.
There shall be a Series of Securities designated the “4.450% Notes due 2026.”
Section 2.2 Price.
The Initial Notes shall be issued at a public offering price of 99.378% of the principal
amount thereof, other than any offering discounts pursuant to the initial offering and resale of the
Notes.
Section 2.3 Limitation on Initial Aggregate Principal Amount; Further Issuances.
The aggregate principal amount of the Notes initially shall be limited to $300,000,000. The
Company may, without notice to or consent of the Holders, issue Additional Notes from time to
time in the future in an unlimited principal amount, subject to compliance with the terms of the
Indenture.
Nothing contained in this Section 2.3 or elsewhere in this First Supplemental Indenture, or
in the Notes, is intended to or shall limit execution by the Company or authentication or delivery
by the Trustee of Notes under the circumstances contemplated by Sections 2.7, 2.8, 2.11, 3.6 or 9.6
of the Base Indenture.
Section 2.4 Interest and Interest Rates; Stated Maturity of Notes.
(i) The Notes shall bear interest at the rate of 4.450% per year. Interest on the Notes
will accrue from August 18, 2016 and will be payable semi-annually in arrears on March 15 and
September 15 of each year, commencing on March 15, 2017 (each such date being an “Interest
Payment Date”), to the persons (the “Holders”) in whose names the Notes are registered in the
security register on the preceding March 1 or September 1, whether or not a Business Day, as the
case may be (each such date being a “Record Date”). Interest on the Notes will be computed on
the basis of a 360-day year consisting of twelve 30-day months.
(ii) If any Interest Payment Date, Stated Maturity or Redemption Date falls on a day
that is not a Business Day, the required payment shall be made on the next Business Day as if it
were made on the date the payment was due and no interest shall accrue on the amount so payable
for the period from and after that Interest Payment Date, Stated Maturity or Redemption Date, as
the case may be, until the next Business Day.
(iii) The Stated Maturity of the Notes shall be September 15, 2026.
Section 2.5 Method of Payment.
Principal, premium, if any, and interest shall be payable at the corporate trust office of the
Trustee, initially located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000. The
Company shall pay interest (i) on any Notes in certificated form by check mailed to the address of
the person entitled thereto; provided, however, that a Holder of any Notes in certificated form in
the aggregate principal amount of more than $2,000,000 may specify by written notice to the
Company (with a copy to the Trustee) that it pay interest by wire transfer of immediately available
funds to the account specified by the Holder in such notice, or (ii) on any Global Note by wire
transfer of immediately available funds to the account of the Depositary or its nominee. Any
interest on any Note which is payable, but is not punctually paid or duly provided for, on any
March 15 or September 15 (herein called “Defaulted Interest”) shall forthwith cease to be payable
to the Holder registered as such on the relevant Record Date, and such Defaulted Interest shall be
paid by the Company, at its election in each case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted Interest to the persons
in whose names the Notes are registered at 5:00 p.m., New York City time, on a special record date
9
US-DOCS\51573375.10
for the payment of such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be
paid on each Note and the date of the proposed payment (which shall be not less than 25 calendar
days after the receipt by the Trustee of such notice, unless the Trustee shall consent to an earlier
date), and at the same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount 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 deposited to be held in trust for the benefit of the persons entitled to
such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record
date for the payment of such Defaulted Interest which shall be not more than 15 calendar days and
not less than 10 calendar days prior to the date of the proposed payment, and not less than 10
calendar days after the receipt by the Trustee of the notice of the proposed payment (unless the
Trustee shall consent to an earlier date). The Trustee shall promptly notify the Company of such
special record date and, in the name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the special record date therefor to be sent to each
Holder at its address as it appears in the register, not less than 10 calendar days prior to such special
record date (unless, the Trustee shall consent to an earlier date). Notice of the proposed payment of
such Defaulted Interest and the special record date therefor having been so mailed, such Defaulted
Interest shall be paid to the persons in whose names the Notes are registered at 5:00 p.m., New
York City time, on such special record date and shall no longer be payable pursuant to the
following clause (ii) of this Section 2.5.
(ii) The Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange or automated quotation
system on which the Notes may be listed or designated for issuance, and upon such notice as may
be required by such exchange or automated quotation system, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
Section 2.6 Currency.
Principal and interest on the Notes shall be payable in U.S. Dollars.
Section 2.7 Additional Notes.
The Company will be entitled, upon delivery of an Officer’s Certificate, Opinion of
Counsel and Authentication Order, subject to its compliance with Section 6.1, to issue Additional
Notes under the Indenture that will have identical terms to the Initial Notes issued on the date of
the Indenture other than with respect to the date of issuance and issue price.
With respect to any Additional Notes, the Company will set forth in a resolution of the
board of managers of the General Partner acting on behalf of the Company and an Officer’s
Certificate, a copy of each of which will be delivered to the Trustee, the following information:
(i) the aggregate principal amount of such Additional Notes to be authenticated and
delivered pursuant to the Indenture; and
(ii) the issue price, the issue date and the CUSIP number of such Additional Notes.
Section 2.8 Redemption.
The Notes may be redeemed at the option of the Company prior to the Stated Maturity as
provided in Article IV.
Section 2.9 No Sinking Fund.
The provisions of Article XI of the Base Indenture shall not be applicable to the Notes.
Section 2.10 Registrar and Paying Agent.
The Trustee shall initially serve as Registrar and Paying Agent for the Notes.
10
US-DOCS\51573375.10
ARTICLE III
FORM OF THE SECURITIES
Section 3.1 Global Form.
The Notes shall initially be issued in the form of one or more permanent Global Notes. The
Notes shall not be issuable in definitive form except as provided in Section 3.2(a) of this First
Supplemental Indenture. The Notes and the Trustee’s certificate of authentication shall be
substantially in the form attached as Exhibit A hereto. The Company shall execute and the Trustee
shall, in accordance with Section 2.3 of the Base Indenture, authenticate and hold each Global
Note as custodian for the Depositary. Each Global Note will represent such of the outstanding
Notes as will be specified therein and each shall provide that it represents the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the aggregate principal
amount of outstanding Notes represented thereby may from time to time be reduced or increased,
as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to reflect
the amount of any increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby will be made by the Registrar or the custodian, at the direction of the Trustee.
The terms and provisions contained in the form of Note attached as Exhibit A hereto shall
constitute, and are hereby expressly made, a part of the Indenture and, to the extent applicable, the
Company and the Trustee, by their execution and delivery of this First Supplemental Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Section 3.2 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of
the Depositary to the Depositary or to another nominee of the Depositary, or by the Depositary or
any such nominee to a successor Depositary or a nominee of such successor Depositary. All
Global Notes will be exchanged by the Company for Definitive Notes if:
(1) the Company delivers to the Trustee notice from the Depositary that
it is unwilling or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor Depositary is not
appointed by the Company within 120 days after the date of such notice from the
Depositary; or
(2) the Company in its sole discretion determines that the Global Notes
(in whole but not in part) should be exchanged for Definitive Notes and delivers a written
notice to such effect to the Trustee; or
(3) upon request from the Depositary if there has occurred and is
continuing a Default or Event of Default with respect to the Notes.
Upon the occurrence of any of the preceding events in (1), (2) or (3) above, Definitive
Notes shall be issued in such names as the Depositary shall instruct the Trustee. Global Notes also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.8 and 2.11 of the Base
Indenture. Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or
any portion thereof, pursuant to this Section 3.2 or Section 2.8 and 2.11 of the Base Indenture, shall
be authenticated and delivered in the form of, and shall be, a Global Note. A Global Note may not
be exchanged for another Note other than as provided in this Section 3.2(a); however, beneficial
interests in a Global Note may be transferred and exchanged as provided in Section 3.2(b), (c) or
(f).
(b) Transfer and Exchange of Beneficial Interests in the Global Notes. The
transfer and exchange of beneficial interests in the Global Notes will be effected through the
Depositary, in accordance with the provisions of the Indenture and the Applicable Procedures.
Beneficial interests in the Restricted Global Notes will be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also will require compliance with either subparagraph (1)
or (2) below, as applicable, as well as one or more of the other following subparagraphs, as
applicable:
11
US-DOCS\51573375.10
(1) Transfer of Beneficial Interests in the Same Global Note. Beneficial
interests in any Restricted Global Note may be transferred to Persons who take delivery
thereof in the form of a beneficial interest in the same Restricted Global Note in accordance
with the transfer restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of beneficial interests in the
Regulation S Global Note may not be made to a U.S. Person or for the account or benefit of
a U.S. Person (other than an Initial Purchaser). Beneficial interests in any Unrestricted
Global Note may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers described in this Section
3.2(b)(1).
(2) All Other Transfers and Exchanges of Beneficial Interests in Global
Notes. In connection with all transfers and exchanges of beneficial interests that are not
subject to Section 3.2(b)(1) above, the transferor of such beneficial interest must deliver to
the Registrar either:
both:
(A) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or exchanged;
and
(B) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be credited
with such increase; or
both:
(C) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged; and
(D) instructions given by the Depositary to the Registrar
containing information regarding the Person in whose name such Definitive Note
shall be registered to effect the transfer or exchange referred to in (b)(1) above.
Upon consummation of an Exchange Offer by the Company in accordance with Section 3.2(f), the
requirements of this Section 3.2(b)(2) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes. Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global Notes contained in this First Supplemental
Indenture and the Notes or otherwise applicable under the Securities Act, the Trustee shall adjust
the principal amount of the relevant Global Note(s) pursuant to Section 3.2(h).
(3) Transfer of Beneficial Interests to Another Restricted Global Note.
A beneficial interest in any Restricted Global Note may be transferred to a Person who
takes delivery thereof in the form of a beneficial interest in another Restricted Global Note
if the transfer complies with the requirements of Section 3.2(b)(2) above and the Registrar
receives the following:
(A) if the transferee will take delivery in the form of a beneficial
interest in the 144A Global Note, then the transferor must deliver a certificate in the
form of Exhibit B hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of a beneficial
interest in the Regulation S Global Note, then the transferor must deliver a
certificate in the form of Exhibit B hereto, including the certifications in item (2)
thereof.
12
US-DOCS\51573375.10
(4) Transfer and Exchange of Beneficial Interests in a Restricted Global
Note for Beneficial Interests in an Unrestricted Global Note. A beneficial interest in any
Restricted Global Note may be exchanged by any holder thereof for a beneficial interest in
an Unrestricted Global Note or transferred to a Person who takes delivery thereof in the
form of a beneficial interest in an Unrestricted Global Note if the exchange or transfer
complies with the requirements of Section 3.2(b)(2) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of the beneficial interest to be transferred, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (i) a Broker-Dealer, (ii) a Person participating in the distribution of the
Exchange Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration Rights
Agreement; or the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item (l)(a) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a beneficial interest in an Unrestricted
Global Note, a certificate from such holder in the form of Exhibit B hereto,
including the certifications in item (4) thereof; in each such case set forth in this
subparagraph (D), if the Registrar so requests or if the Applicable Procedures so
require, an Officer’s Certificate and an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above at a time when an
Unrestricted Global Note has not yet been issued, the Company shall issue and, upon receipt of an
Authentication Order, the Trustee shall authenticate one or more Unrestricted Global Notes in an
aggregate principal amount equal to the aggregate principal amount of beneficial interests
transferred pursuant to subparagraph (B) or (D) above, interests in an Unrestricted Global Note
cannot be exchanged for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(1) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted Global Note proposes
to exchange such beneficial interest for a Restricted Definitive Note or to transfer such
beneficial interest to a Person who takes delivery thereof in the form of a Restricted
Definitive Note, then, upon receipt by the Registrar of the following documentation;
(A) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Restricted Definitive Note,
a certificate from such holder in the form of Exhibit C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (1) thereof;
13
US-DOCS\51573375.10
(C) if such beneficial interest is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904, a
certificate to the effect set forth in Exhibit B hereto, including the certifications in
item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in accordance
with Rule 144, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b) thereof; or
(F) if such beneficial interest is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate to the effect
set forth in Exhibit B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable Global Note to be reduced
accordingly pursuant to Section 3.2(h), and the Company shall execute and, upon the receipt of an
Authentication Order, the Trustee shall authenticate and deliver to the Person designated in the
instructions a Restricted Definitive Note in the appropriate principal amount. Any Restricted
Definitive Note issued in exchange for a beneficial interest in a Restricted Global Note pursuant to
this Section 3.2(c) shall be registered in such name or names and in such authorized denomination
or denominations as the holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Restricted Definitive Notes to the Persons in whose names such Notes are so
registered. Any Restricted Definitive Note issued in exchange for a beneficial interest in a
Restricted Global Note pursuant to this Section 3.2(c)(1) shall bear the Private Placement Legend
and shall be subject to all restrictions on transfer contained therein.
(2) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global Note may
exchange such beneficial interest for an Unrestricted Definitive Note or may transfer such
beneficial interest to a Person who takes delivery thereof in the form of an Unrestricted
Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
holder of such beneficial interest, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of Transmittal that it is not (i)
a Broker-Dealer, (ii) a Person participating in the distribution of the Exchange
Notes or (iii) a Person who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial interest for an
Unrestricted Definitive Note, a certificate from such holder in the form of Exhibit C
hereto, including the certifications in item (l)(b) thereof; or
(ii) if the holder of such beneficial interest in a
Restricted Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of an Unrestricted Definitive Note, a
certificate from such holder in the form of Exhibit B hereto, including the
certifications in item (4) thereof; , in each such case set forth in this subparagraph
(D), if the Registrar so requests or if the Applicable Procedures so require, an
14
US-DOCS\51573375.10
Officer’s Certificate and an Opinion of Counsel in form reasonably acceptable to
the Registrar to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain compliance
with the Securities Act.
(3) Beneficial Interests in Unrestricted Global Notes to Unrestricted
Definitive Notes. If any holder of a beneficial interest in an Unrestricted Global Note
proposes to exchange such beneficial interest for an Unrestricted Definitive Note or to
transfer such beneficial interest to a Person who takes delivery thereof in the form of an
Unrestricted Definitive Note, then, upon satisfaction of the conditions set forth in Section
3.2(b)(2), the Trustee will cause the aggregate principal amount of the applicable
Unrestricted Global Note to be reduced accordingly pursuant to Section 3.2(h) hereof, and
the Company will execute and, upon the receipt of an Authentication Order, the Trustee
will authenticate and deliver to the Person designated in the instructions an Unrestricted
Definitive Note in the appropriate principal amount. Any Unrestricted Definitive Note
issued in exchange for a beneficial interest pursuant to this Section 3.2(c)(3) will be
registered in such name or names and in such authorized denomination or denominations
as the holder of such beneficial interest requests through instructions to the Registrar from
or through the Depositary and the Participant or Indirect Participant. The Trustee will
deliver such Unrestricted Definitive Notes to the Persons in whose names such Notes are
so registered. Any Unrestricted Definitive Note issued in exchange for a beneficial interest
pursuant to this Section 3.2(c)(3) will not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(1) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to exchange such
Note for a beneficial interest in a Restricted Global Note or to transfer such Restricted
Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest
in a Restricted Global Note, then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note, a
certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a
QIB in accordance with Rule 144A, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or Rule
904, a certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred
pursuant to an exemption from the registration requirements of the Securities Act in
accordance with Rule 144, a certificate to the effect set forth in Exhibit B hereto,
including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth in Exhibit B
hereto, including the certifications in item (3)(b) thereof; or
(F) if such Restricted Definitive Note is being transferred
pursuant to an effective registration statement under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the certifications in item (3)(c)
thereof, Trustee will cancel the Restricted Definitive Note, increase or cause to be
increased the aggregate principal amount of, in the case of clause (A) above, the
appropriate Restricted Global Note, in the case of clause (B) above, the 144A
Global Note and in the case of clause (C) above, the Regulation S Global Note.
15
US-DOCS\51573375.10
(2) Restricted Definitive Notes to Beneficial Interests in Unrestricted
Global Notes. A Holder of a Restricted Definitive Note may exchange such Note for a
beneficial interest in an Unrestricted Global Note or transfer such Restricted Definitive
Note to a Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note only if;
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii)
a Person participating in the distribution of the Exchange Notes or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration Rights
Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto, including the
certifications in item (l)(c) thereof; or
(ii) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery thereof in the
form of a beneficial interest in the Unrestricted Global Note, a certificate from such
Holder in the form of Exhibit B hereto, including the certifications in item (4)
thereof; , in each such case set forth in this subparagraph (D), if the Registrar so
requests or if the Applicable Procedures so require, an Opinion of Counsel in form
reasonably acceptable to the Registrar to the effect that such exchange or transfer is
in compliance with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act. satisfaction of the conditions of any
of the subparagraphs in this Section 3.2(d)(2), the Trustee will cancel the Restricted
Definitive Notes and increase or cause to be increased the aggregate principal
amount of the Unrestricted Global Note.
(3) Unrestricted Definitive Notes to Beneficial Interests in Unrestricted
Global Notes. A Holder of an Unrestricted Definitive Note may exchange such Note for a
beneficial interest in an Unrestricted Global Note or transfer such Unrestricted Definitive
Notes to a Person who takes delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee will cancel the applicable Unrestricted Definitive Note and increase or
cause to be increased the aggregate principal amount of one of the Unrestricted Global
Notes, any such exchange or transfer from a Definitive Note to a beneficial interest is
effected pursuant to subparagraphs (2)(B), (2)(D) or (3) above at a time when an
Unrestricted Global Note has not yet been issued, the Company will issue and, upon receipt
of an Authentication Order in accordance with Section 3.2, the Trustee will authenticate
one or more Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes. Upon
request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this
Section 3.2(e), the Registrar will register the transfer or exchange of Definitive Notes. Prior to
such registration of transfer or exchange, the requesting Holder must present or surrender to the
Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in
form satisfactory to the Registrar duly executed by such Holder or by its attorney, duly authorized
in writing. In addition, the requesting Holder must provide any additional certifications,
16
US-DOCS\51573375.10
documents and information, as applicable, required pursuant to the following provisions of this
Section 3.2(e).
(1) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name of Persons who
take delivery thereof in the form of a Restricted Definitive Note if the Registrar receives
the following:
(2) if the transfer will be made pursuant to Rule 144A, then the
transferor must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (1) thereof;
(3) if the transfer will be made pursuant to Rule 903 or Rule 904, then
the transferor must deliver a certificate in the form of Exhibit B hereto, including the
certifications in item (2) thereof; and
(4) if the transfer will be made pursuant to any other exemption from
the registration requirements of the Securities Act, then the transferor must deliver a
certificate in the form of Exhibit B hereto.
(5) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an Unrestricted
Definitive Note or transferred to a Person or Persons who take delivery thereof in the form
of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement and the
Holder, in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (i) a Broker-Dealer, (ii)
a Person participating in the distribution of the Exchange Notes or (iii) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to
the Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive Notes
proposes to exchange such Notes for an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit C hereto, including the certifications in
item (l)(d) thereof; or
(ii) if the Holder of such Restricted Definitive Notes
proposes to transfer such Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such Holder in the form
of Exhibit B hereto, including the certifications in item (4) thereof; , in each such
case set forth in this subparagraph (D), if the Registrar so requests, an Opinion of
Counsel in form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement Legend are no
longer required in order to maintain compliance with the Securities Act.
(6) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in accordance
with the Registration Rights Agreement, the Company will issue and, upon receipt of an
Authentication Order, the Trustee will authenticate;
17
US-DOCS\51573375.10
(1) one or more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount of the beneficial interests in the Restricted Global
Notes accepted for exchange in the Exchange Offer by Persons that certify in the
applicable Letters of Transmittal that (A) they are not Broker-Dealers, (B) they are not
participating in a distribution of the Exchange Notes and (C) they are not affiliates (as
defined in Rule 144) of the Company; and
(2) Unrestricted Definitive Notes in an aggregate principal amount
equal to the principal amount of the Restricted Definitive Notes accepted for exchange in
the Exchange Offer by Persons that certify in the applicable Letters of Transmittal that
(A) they are not Broker-Dealers, (B) they are not participating in a distribution of the
Exchange Notes and (C) they are not affiliates (as defined in Rule 144) of the Company.
Concurrently with the issuance of such Notes, the Trustee will cause the aggregate
principal amount of the applicable Restricted Global Notes to be reduced accordingly, and
the Company will execute and the Trustee will authenticate and deliver to the Persons
designated by the Holders of Definitive Notes so accepted Unrestricted Definitive Notes in
the appropriate principal amount.
(g) Legends. The following legends will appear on the face of all Global Notes
and Definitive Notes issued under the Indenture unless specifically stated otherwise in the
applicable provisions of the Indenture.
(1) Private Placement Legend.
Except as permitted by subparagraph (B) below, each Global Note and each
Definitive Note (and all Notes issued in exchange therefor or substitution thereof) shall
bear the legend in substantially the following form:
“THE SECURITY (OR ITS PREDECESSOR) EVIDENCED
HEREBY WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER SECTION 5 OF THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION
THEREFROM. EACH PURCHASER OF THE SECURITY
EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE
SELLER MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT
PROVIDED BY RULE 144A THEREUNDER. THE HOLDER OF
THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT PRIOR TO THE DATE
THAT IS ONE YEAR AFTER THE LATER OF THE ISSUE
DATE HEREOF AND THE LAST DATE ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS
THE OWNER OF SUCH SECURITY (OR ANY PREDECESSOR
OF SUCH SECURITY), (A) SUCH SECURITY MAY BE
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (1)(a) INSIDE THE UNITED STATES TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A UNDER
THE SECURITIES ACT, (b) OUTSIDE THE UNITED STATES
TO A FOREIGN PERSON IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (c)
PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144
18
US-DOCS\51573375.10
THEREUNDER (IF APPLICABLE) OR (d) IN ACCORDANCE
WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (AND BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE
COMPANY IF THE COMPANY SO REQUESTS), (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THE SECURITY
EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN CLAUSE (A) ABOVE. NO REPRESENTATION CAN
BE MADE AS TO THE AVAILABILITY OF THE EXEMPTION
PROVIDED BY RULE 144 FOR RESALE OF THE SECURITY
EVIDENCED HEREBY.”
Notwithstanding the foregoing, any Global Note or Definitive Note issued pursuant
to subparagraphs (b)(4), (c)(2), (c)(3), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section 3.2
(and all Notes issued in exchange therefor or substitution thereof) will not bear the Private
Placement Legend. The Company may also provide a certificate to the Trustee instructing
the Trustee that the Private Placement Legend no longer applies or issue one or more new
Notes to the Trustee in replacement for all or part of the Notes with the Private Placement
Legend.
(2) Global Note Legend. Each Global Note will bear a legend in
substantially the following form:
“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS
DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR
ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY
MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 3.2 OF THE FIRST
SUPPLEMENTAL INDENTURE, (2) THIS GLOBAL NOTE
MAY BE EXCHANGED IN WHOLE BUT NOT IN PART
PURSUANT TO SECTION 3.2(a) OF THE FIRST
SUPPLEMENTAL INDENTURE, (3) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 2.12 OF THE
BASE INDENTURE AND (4) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE
PRIOR WRITTEN CONSENT OF SPIRIT REALTY, L.P.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY
NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (00 XXXXX XXXXXX, XXX
XXXX, XXX XXXX) (“DTC”), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
19
US-DOCS\51573375.10
PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.”
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for Definitive Notes or a
particular Global Note has been redeemed, repurchased or canceled in whole and not in part, each
such Global Note will be returned to or retained and canceled by the Trustee in accordance with in
accordance with Section 2.12 of the Base Indenture. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note or for Definitive Notes,
the principal amount of Notes represented by such Global Note will be reduced accordingly and an
endorsement will be made on such Global Note by the Trustee or by the Depositary at the direction
of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or
transferred to a Person who will take delivery thereof in the form of a beneficial interest in another
Global Note, such other Global Note will be increased accordingly and an endorsement will be
made on such Global Note by the Trustee or by the Depositary at the direction of the Trustee to
reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(1) To permit registrations of transfers and exchanges, the Company
will execute and the Trustee will authenticate Global Notes and Definitive Notes upon
receipt of an Authentication Order or at the Registrar’s request.
(2) No service charge will be made to a Holder of a beneficial interest in
a Global Note or to a Holder of a Definitive Note for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any transfer
tax or similar governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or transfer pursuant
to Sections 2.11 and 9.6 of the Base Indenture and Section 4.3 of this First Supplemental
Indenture).
(3) The Registrar will not be required to register the transfer of or
exchange of any Note selected for redemption in whole or in part, except the unredeemed
portion of any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any registration
of transfer or exchange of Global Notes or Definitive Notes will be the valid obligations of
the Company, evidencing the same debt, and entitled to the same benefits under the
Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of
transfer or exchange.
(5) Neither the Registrar nor the Company will be required:
(A) to issue, to register the transfer of or to exchange any Note
during a period beginning at the opening of business fifteen days before any
selection of Notes for redemption under Article IV and ending at the close of
business on the earliest date on which the relevant notice of redemption is deemed
to have been given to all Holders of Notes to be so redeemed; or
(B) to register the transfer of or to exchange any Note selected
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
(C) to register the transfer of or to exchange a Note between a
record date and the next succeeding Interest Payment Date.
(6) Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person in whose
20
US-DOCS\51573375.10
name any Note is registered as the absolute owner of such Note for the purpose of receiving
payment of principal of and interest on such Notes and for all other purposes, and none of
the Trustee, any Agent or the Company shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive Notes in
accordance with the provisions of Section 3.1 hereof.
(8) All certifications, certificates and Opinions of Counsel required to
be submitted to the Registrar pursuant to this Section 3.2 to effect a registration of transfer
or exchange may be submitted by facsimile.
ARTICLE IV
REDEMPTION OF NOTES
The provisions of Article III of the Base Indenture, as amended by the provisions of this
First Supplemental Indenture, shall apply to the Notes.
Section 4.1 Optional Redemption of Notes.
The Notes will be redeemable in whole at any time or in part from time to time, at the
Company’s option, at a redemption price (the “Redemption Price”) calculated by the Company
and equal the sum of (1) 100% of the principal amount of the Notes to be redeemed plus accrued
and unpaid interest, up to, but not including, the Redemption Date plus (2) a Make-Whole
Premium; provided that if the Redemption Date falls after a Record Date and on or prior to the
corresponding Interest Payment Date, the Company will pay the full amount of accrued and unpaid
interest, if any, on such Interest Payment Date to the Holder of record at the close of business on
the corresponding Record Date (instead of the Holder surrendering its Notes for redemption) and
the Redemption Price shall not include accrued and unpaid interest up to, but not including, the
Redemption Date. Notwithstanding the foregoing, if the Notes are redeemed on or after June 15,
2026, the Redemption Price will not include a Make-Whole Premium.
Section 4.2 Notice of Optional Redemption, Selection of Notes.
(a) In case the Company shall desire to exercise the right to redeem all or, as the
case may be, any part of the Notes pursuant to Section 4.1, it shall fix a date for redemption and it
or, at its written request received by the Trustee not fewer than five Business Days prior (or such
shorter period of time as may be acceptable to the Trustee) to the date the notice of redemption is to
be sent, the Trustee in the name of and at the expense of the Company, shall mail or cause to be
mailed, or sent by electronic transmission, a notice of such redemption not fewer than thirty
calendar days but not more than sixty calendar days prior to the Redemption Date to each Holder
of Notes to be redeemed at its last address as the same appears on the Register; provided that if the
Company makes such request of the Trustee, it shall, together with such request, also give written
notice of the Redemption Date to the Trustee, provided further that the text of the notice shall be
prepared by the Company. Such mailing shall be by first class mail or by electronic transmission.
The notice, if sent in the manner herein provided, shall be conclusively presumed to have been
duly given, whether or not the Holder receives such notice. In any case, failure to give such notice
by mail or electronic submission or any defect in the notice to the Holder of any Note designated
for redemption as a whole or in part shall not affect the validity of the proceedings for the
redemption of any other Note.
(b) Each such notice of redemption shall specify: (i) the aggregate principal
amount of Notes to be redeemed, (ii) the CUSIP number or numbers of the Notes being redeemed,
(iii) the Redemption Date (which shall be a Business Day), (iv) the Redemption Price at which
Notes are to be redeemed, (v) the place or places of payment and that payment will be made upon
presentation and surrender of such Notes and (vi) that interest accrued and unpaid to, but
excluding, the Redemption Date will be paid as specified in said notice, and that on and after said
date interest thereon or on the portion thereof to be redeemed will cease to accrue. If fewer than all
the Notes are to be redeemed, the notice of redemption shall identify the Notes to be redeemed
(including CUSIP numbers, if any). In case any Note is to be redeemed in part only, the notice of
redemption shall state the portion of the principal amount thereof to be redeemed and shall state
that, on and after the Redemption Date, upon surrender of such Note, a new Note or Note in
principal amount equal to the unredeemed portion thereof will be issued.
21
US-DOCS\51573375.10
(c) On or prior to the Redemption Date specified in the notice of redemption
given as provided in this Section 4.2, the Company will deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in
Section 2.5 of the Base Indenture) an amount of money in immediately available funds sufficient
to redeem on the Redemption Date all the Notes (or portions thereof) so called for redemption at
the appropriate Redemption Price; provided that if such payment is made on the Redemption Date,
it must be received by the Paying Agent, by 11:00 a.m., New York City time, on such date. The
Company shall be entitled to retain any interest, yield or gain on amounts deposited with the
Paying Agent pursuant to this Section 4.2 in excess of amounts required hereunder to pay the
Redemption Price.
(d) If less than all of the outstanding Notes are to be redeemed, the Trustee will
select, in a manner it deems fair and appropriate, subject to Applicable Procedures, the Notes or
portions thereof of the Global Notes or the Notes in certificated form to be redeemed (in minimum
denominations of $2,000 and integral multiples of $1,000 in excess thereof). The Notes (or
portions thereof) so selected for redemption shall be deemed duly selected for redemption for all
purposes hereof.
Section 4.3 Payment of Notes Called for Redemption by the Company.
(a) If notice of redemption has been given as provided in Section 4.2, the Notes
or portion of Notes with respect to which such notice has been given shall become due and payable
on the Redemption Date and at the place or places stated in such notice at the Redemption Price,
and unless the Company defaults in the payment of the Redemption Price, (i) interest will cease to
accrue on any Notes called for redemption at the Redemption Date, (ii) on and after the
Redemption Date (unless the Company defaults in the payment of the Redemption Price) such
Notes shall cease to be entitled to any benefit or security under the Indenture and (iii) the Holders
thereof shall have no right in respect of such Notes except the right to receive the Redemption
Price thereof. On presentation and surrender of such Notes at a place of payment in said notice
specified, the said Notes or the specified portions thereof shall be paid and redeemed by the
Company at the Redemption Price, together with interest accrued thereon to, but excluding, the
Redemption Date.
(b) Upon presentation of any Note redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to the Holder thereof, at
the expense of the Company, a new Note or Notes, of authorized denominations, in principal
amount equal to the unredeemed portion of the Notes so presented.
ARTICLE V
GUARANTEE
Section 5.1 Note Guarantee.
(a) Subject to this Article 5, the Guarantor hereby unconditionally guarantees
to each Holder of a Note authenticated and delivered by the Trustee and to the Trustee and its
successors and assigns, that:
(1) the principal of, premium, if any, and interest, if any, on the Notes
will be promptly paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of, premium on, if any, irrespective of the
validity and enforceability of the Indenture, the Notes or the obligations of the Company
under the Indenture or the Notes, and interest, if any, on, the Notes, if lawful, and all other
obligations of the Company to the Holders or the Trustee under the Indenture or the Notes
will be promptly paid in full or performed, all in accordance with the terms under the
Indenture or the Notes; and
(2) in case of any extension of time of payment or renewal of any Notes
or any of such other obligations, that same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at Stated
Maturity, by acceleration or otherwise.
22
US-DOCS\51573375.10
Failing payment when due of any amount so guaranteed or any performance so guaranteed
for whatever reason, the Guarantor will be obligated to pay the same immediately. The Guarantor
agrees that this is a guarantee of payment and not a guarantee of collection.
(b) The Guarantor hereby agrees that its obligations under the Indenture and the
Notes are full and unconditional, irrespective of the validity, regularity or enforceability of the
Indenture or the Notes, the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions of the Indenture or the Notes, the recovery of
any judgment against the Company, any action to enforce the same or any other circumstance
which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. The
Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court
in the event of insolvency or bankruptcy of the Company, any right to require a proceeding first
against the Company, protest, notice and all demands whatsoever and covenants that this Note
Guarantee will not be discharged except by complete performance of the obligations contained in
the Indenture and the Notes.
(c) If any Holder or the Trustee is required by any court or otherwise to return
to the Company, the Guarantor or any custodian, trustee, liquidator or other similar official acting
in relation to either the Company or the Guarantor, any amount paid by either to the Trustee or
such Holder, this Note Guarantee, to the extent theretofore discharged, will be reinstated in full
force and effect.
(d) The Guarantor agrees that it will not be entitled to any right of subrogation
in relation to the Holders in respect of any obligations guaranteed hereby until payment in full of
all obligations guaranteed hereby. The Guarantor further agrees that, as between the Guarantor, on
the one hand, and the Holders and the Trustee, on the other hand, (1) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article VII for the purposes of this Note
Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration
in respect of the obligations guaranteed hereby, and (2) in the event of any declaration of
acceleration of such obligations as provided in Article VII, such obligations (whether or not due
and payable) will forthwith become due and payable by the Guarantor for the purpose of this Note
Guarantee.
Section 5.2 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 5.01, the Guarantor hereby agrees that
this First Supplemental Indenture will be executed on its behalf by one of its Officers. If an Officer
whose signature is on this First Supplemental Indenture no longer holds that office at the time the
Trustee authenticates the Note on which the Note Guarantee is endorsed, the Note Guarantee will
be valid nevertheless. The delivery of any Note by the Trustee, after the authentication thereof
hereunder, will constitute due delivery of the Note Guarantee set forth in this First Supplemental
Indenture on behalf of the Guarantor.
Section 5.3 Limitation of Guarantor’s Liability.
The 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 the Guarantor not constitute a fraudulent
transfer or conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance Act,
the Uniform Fraudulent Transfer Act or any similar federal or state law to the extent applicable to
the Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and the
Guarantor hereby irrevocably agree that the obligations of the Guarantor will be limited to the
maximum amount that will not, after giving effect to all other contingent and fixed liabilities of the
Guarantor that are relevant under such laws, result in the obligations of the Guarantor under its
Note Guarantee constituting a fraudulent transfer or conveyance.
Section 5.4 Application of Certain Terms and Provisions to the Guarantor.
(a) For purposes of any provision of the Indenture which provides for the
delivery by the Guarantor of an Officer’s Certificate and/or an Opinion of Counsel, the definitions
of such terms in Section 1.2 shall apply to the Guarantor as if references therein to the Company or
the Guarantor, as applicable, were references to the Guarantor.
23
US-DOCS\51573375.10
(b) Any notice or demand which by any provision of the Indenture is required
or permitted to be given or served by the Trustee or by the Holders of Notes to or on the Guarantor
may be given or served as described in Section 10.2 of the Base Indenture as if references therein
to the Company were references to the Guarantor.
(c) Upon any demand, request or application by the Guarantor to the Trustee to
take any action under the Indenture, the Guarantor shall furnish to the Trustee such Officer’s
Certificate and Opinion of Counsel as are required in Section 10.1 as if all references therein to the
Company were references to the Guarantor.
ARTICLE VI
ADDITIONAL COVENANTS
The following additional covenants shall apply with respect to the Notes so long as any of
the Notes remain outstanding:
Section 6.1 Limitations on Incurrence of Debt.
(a) Aggregate Debt Test. The Guarantor will not, and will not permit any of its
Subsidiaries to, incur any Debt if, immediately after giving effect to the incurrence of such
additional Debt and the application of the proceeds of the additional Debt on a pro forma basis, the
aggregate principal amount of all the Guarantor’s outstanding Debt and that of its Subsidiaries on a
consolidated basis as determined in accordance with GAAP is greater than 60% of the sum of
(without duplication):
(i) the Guarantor’s Total Assets as of the end of the fiscal quarter
covered in the Guarantor’s Annual Report on Form 10-K or Quarterly Report on
Form 10-Q, as the case may be, most recently filed with the SEC (or, if such filing
is not permitted under the Exchange Act, furnished to the Trustee) prior to the
incurrence of such additional Debt; and
(ii) the purchase price of any real estate assets or mortgages receivable
acquired, and the amount of any securities offering proceeds received (to the extent
such proceeds were not used to acquire real estate assets or mortgages receivable or
used to reduce Debt), by the Guarantor or any of its Subsidiaries since the end of
such fiscal quarter, including those proceeds obtained in connection with the
incurrence of such additional Debt.
(b) Debt Service Test. The Guarantor will not, and will not permit any of its
Subsidiaries to, incur any Debt if the ratio of Consolidated Income Available for Debt Service to
the Annual Service Charge for the most recent quarterly period covered in the Guarantor’s Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed
with the SEC (or, if such filing is not permitted under the Exchange Act, furnished to the Trustee)
prior to such time, annualized (i.e., multiplied by four) prior to the date on which such additional
Debt is to be incurred shall have been less than 1.5, on a pro forma basis after giving effect thereto
and to the application of the proceeds therefrom, and calculated on the assumption that:
(i) such Debt and any other Debt incurred by the Guarantor or its
Subsidiaries since the first day of such quarterly period and the application of the
proceeds therefrom, including to refinance other Debt since the first day of such
period, had occurred at the beginning of such period;
(ii) the repayment or retirement of any other Debt (other than Debt
repaid or retired with the proceeds of any other Debt, which repayment or
retirement shall be calculated pursuant to Section 6.1(b)(i) and not to this Section
6.1(b)(ii)) by the Guarantor or its Subsidiaries since the first day of such quarterly
period had been repaid or retired at the beginning of such period (except that, in
making such computation, the amount of Debt under any revolving credit facility,
line of credit or similar facility shall be computed based upon the average daily
balance of such Debt during such period);
(iii) in the case of Acquired Debt or Debt incurred by the Guarantor or
any of its Subsidiaries in connection with any acquisition since the first day of such
24
US-DOCS\51573375.10
quarterly period, the related acquisition had occurred as of the first day of such
period with the appropriate adjustments with respect to such acquisition being
included in such pro forma calculation; and
(iv) in the case of any acquisition or disposition by the Guarantor or any
of its Subsidiaries of any asset or group of assets since the first day of such
quarterly period, whether by merger, stock purchase or sale, or asset purchase or
sale, such acquisition or disposition and any related repayment of Debt had
occurred as of the first day of such period with the appropriate adjustments with
respect to such acquisition or disposition being included in such pro forma
calculation.
If the Debt giving rise to the need to make the calculation described in this Section 6.1 or any other
Debt incurred after the first day of the relevant quarterly period bears interest at a floating rate (to
the extent such Debt has been hedged to bear interest at a fixed rate, only the portion of such Debt,
if any, that has not been so hedged), then, for purposes of calculating the Annual Debt Service
Charge, the interest rate on such Debt will be computed on a pro forma basis as if the average
interest rate that would have been in effect during the entire such period had been the applicable
rate for the entire such period.
(c) Maintenance of Total Unencumbered Assets. The Guarantor and its
Subsidiaries may not at any time own Total Unencumbered Assets equal to less than 150% of the
aggregate outstanding principal amount of the Unsecured Debt of the Guarantor and its
Subsidiaries on a consolidated basis.
(d) Secured Debt Test. The Guarantor will not, and will not permit any of its
Subsidiaries to, incur any Debt secured by any mortgage, lien, charge, pledge, encumbrance or
security interest upon any of the Guarantor’s property or the property of any of its Subsidiaries,
whether owned at the date hereof or hereafter acquired, if, immediately after giving effect to the
incurrence of such additional Debt and the application of the proceeds thereof, the aggregate
principal amount of all of the Guarantor’s outstanding Debt and the outstanding Debt of its
Subsidiaries on a consolidated basis for borrowed money that is secured by any mortgage, lien,
charge, pledge, encumbrance or security interest on the Guarantor’s property or the property of
any of its Subsidiaries is greater than 40% of the sum of (without duplication):
(i) the Guarantor’s Total Assets as of the end of the fiscal quarter
covered in the Guarantor’s Annual Report on Form 10-K or Quarterly Report
on Form 10-Q, as the case may be, most recently filed with the SEC (or, if such
filing is not permitted under the Exchange Act, furnished to the Trustee) prior
to the incurrence of such additional Debt; and
(ii) the purchase price of any real estate assets or mortgages
receivable acquired, and the amount of any securities offering proceeds
received (to the extent such proceeds were not used to acquire real estate assets
or mortgages receivable or used to reduce Debt), by the Guarantor or any of its
Subsidiaries since the end of such fiscal quarter, including those proceeds
obtained in connection with the incurrence of such additional Debt.
For purposes of this Section 6.1, Debt shall be deemed to be “incurred” by the Guarantor or any of
its Subsidiaries whenever the Guarantor or such Subsidiary shall create, assume, guarantee or
otherwise become liable in respect thereof. Furthermore, nothing in the covenants described under
this Section 6.1 shall prevent the incurrence by the Guarantor or any of its Subsidiaries of Debt
between or among the Guarantor or any of its Subsidiaries.
Section 6.2 Existence.
Except as permitted below, the Guarantor will do or cause to be done all things necessary
to preserve and keep in full force and effect the existence, rights, both charter and statutory, and
franchises of the Guarantor and its Subsidiaries; provided, however, that the Guarantor will not be
required to preserve any right or franchise if the Guarantor determines that the preservation of the
right or franchise is no longer desirable in the conduct of the Guarantor’s business and that the loss
of the right or franchise is not disadvantageous in any material respect to the Holders of the Notes.
25
US-DOCS\51573375.10
Section 6.3 Merger, Consolidation or Sale.
The Company and the Guarantor may consolidate with, or sell, lease or convey all or
substantially all of our respective assets to, or merge with or into, any other entity, provided that
the following conditions are met:
(a) the Company or the Guarantor, as the case may be, shall be the
continuing entity, or the successor entity (if other than Company or the Guarantor, as the case
may be) formed by or resulting from any consolidation or merger or which shall have received
the transfer of assets shall expressly assume payment of principal of, and premium, if any, and
interest, on, all of the Notes and the due and punctual performance and observance of all of the
covenants and conditions in the Indenture and the Registration Rights Agreement;
(b) immediately after giving effect to the transaction, no Event of Default
under the Indenture, and no event which, after notice or the lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(c) an Officer’s Certificate covering these conditions shall be delivered to
the Trustee.
In the case of any such consolidation, sale, conveyance or merger, but not a lease, in a transaction
in which there is a successor entity, the successor entity will succeed to, and be substituted for, the
Company or the Guarantor, as the case may be, under the Indenture and, subject to the terms of the
Indenture, the Company or the Guarantor, as the case may be, will be released from their
respective obligations under the Indenture.
Section 6.4 Payment of Taxes and Other Claims.
The Guarantor will pay or discharge or cause to be paid or discharged, before the same
shall become delinquent, all taxes, assessments and governmental charges levied or imposed upon
the Guarantor or any of its Subsidiaries or upon the Guarantor’s or any such Subsidiary’s income,
profits or property and all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the Guarantor’s or any such Subsidiary’s property; provided, however,
that the Guarantor will not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is being contested in
good faith by appropriate proceedings.
Section 6.5 Provision of Financial Information.
Whether or not we or the Guarantor is subject to Section 13 or 15(d) of the Exchange Act,
the Guarantor will, to the extent permitted under the Exchange Act, file with the SEC the annual
reports, quarterly reports and other documents that the Guarantor would have been required to file
with the SEC pursuant to such Section 13 or 15(d) (the “Financial Statements”) if the Guarantor
were so subject, such documents to be filed with the SEC on or prior to the respective dates (the
“Required Filing Dates”) by which the Guarantor would have been required so to file such
documents if the Guarantor were so subject.
The Guarantor will also in any event (1) within 15 days of each Required Filing Date (a)
transmit by mail or electronic transmittal to all Holders, as their names and addresses appear in the
security register, without cost to such Holders, copies of the annual reports, quarterly reports and
other documents that the Guarantor is required to file or would have been required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act if the Guarantor were subject to such
sections, and (b) furnish to the Trustee copies of annual reports, quarterly reports and other
documents that the Guarantor would have been required to file with the SEC pursuant to Section
13 or 15(d) of the Exchange Act if the Guarantor were subject to such sections; provided that the
foregoing transmittal and furnishing requirements will be deemed satisfied if the foregoing reports
and documents are available on the SEC’s XXXXX system or on the Guarantor’s website within
the applicable time period specified above, and (2) if filing such documents by the Guarantor with
the SEC is not permitted under the Exchange Act, promptly upon written request and payment of
the reasonable cost of duplication and delivery, supply copies of such documents to any
prospective Holder. 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,
26
US-DOCS\51573375.10
including our compliance with any of the covenants thereunder (as to which the Trustee is entitled
to rely conclusively on an Officer’s Certificate). The Trustee shall have no liability or
responsibility for the filing, timeliness or content of any such report.
For so long as any of the Notes remain outstanding and constitute “restricted securities”
under Rule 144, the Company will furnish to the Holders and prospective Holders, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities
Act.
Section 6.6 Maintenance of Properties.
The Guarantor will cause all of its properties used or useful in the conduct of the
Guarantor’s business or the business of any of its Subsidiaries to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements of the
Guarantor’s and its Subsidiaries’ properties, all as in the Guarantor’s judgment may be necessary
so that the business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that the Guarantor and its Subsidiaries will not be
prevented from selling or otherwise disposing for value the Guarantor’s or its Subsidiaries’
properties in the ordinary course of business.
Section 6.7 Insurance.
The Guarantor will, and will cause each of its Subsidiaries to, keep in force upon all of its
properties and operations policies of insurance carried with responsible companies in such
amounts and covering all such risks as shall be customary in the industry in accordance with
prevailing market conditions and availability.
ARTICLE VII
DEFAULTS AND REMEDIES
Sections 7.1 and 7.2 hereof shall replace Sections 6.1 and 6.2 of the Base Indenture with
respect to the Notes only.
Section 7.1 Events of Default.
“Event of Default,” wherever used herein or in the Base Indenture with respect to the Notes,
means any one of the following events (whatever the reason for such Event of Default and whether
it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any administrative or governmental
body):
(a) default for 30 days in the payment of any installment of interest under the Notes;
(b) default in the payment of the principal amount or Redemption Price due with respect to the
Notes, when the same becomes due and payable;
(c) the Guarantee is not (or is claimed by the Guarantor in writing to the Trustee not to be) in
full force and effect (other than in accordance with the terms of the Indenture) with respect
to the Notes;
(d) failure by the Company or the Guarantor to comply with any of the Company’s or the
Guarantor’s respective other agreements in the Notes or this First Supplemental Indenture
with respect to the Notes upon receipt by the Company of notice of such default by the
Trustee or by Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding and the Company’s failure to cure (or obtain a waiver of) such default within
60 days after it receives such notice;
(e) failure to pay any Debt (other than Non-Recourse Debt) (a) of the Company’s or the
Guarantor’s, any Subsidiary in which the Company or the Guarantor has invested at least
$50,000,000 in capital (a “Significant Subsidiary”) or any entity in which the Company is
the general partner or managing member, and (b) in an outstanding principal amount in
excess of $50,000,000 at final maturity or upon acceleration after the expiration of any
27
US-DOCS\51573375.10
applicable grace period, which Debt is not discharged, or such default in payment or
acceleration is not cured or rescinded, within 60 days after written notice to the Company
from the Trustee (or to the Company and the Trustee from Holders of at least 25% in
principal amount of the Notes then outstanding); or
(f) the Company, the Guarantor or any Significant Subsidiary pursuant to or under or within
meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding seeking liquidation, reorganization or
other relief with respect to the Company, the Guarantor or a Significant Subsidiary
or its debts or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of the Company, the Guarantor or a Significant Subsidiary
or any substantial part of the property of the Company, the Guarantor or a
Significant Subsidiary; or
(ii) 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
Company, the Guarantor or a Significant Subsidiary; or
(iii) consents to the appointment of a custodian of it or for all or substantially of its
property; or
(iv) makes a general assignment for the benefit of creditors; or
(g) an involuntary case or other proceeding shall be commenced against the Company, the
Guarantor or any Significant Subsidiary seeking liquidation, reorganization or other relief
with respect to the Company, the Guarantor or a Significant Subsidiary or its debts under
any bankruptcy, insolvency or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other similar official of the
Company, the Guarantor or a Significant Subsidiary or any substantial part of the property
of the Company, the Guarantor or a Significant Subsidiary, and such involuntary case or
other proceeding shall remain undismissed and unstayed for a period of thirty (30) calendar
days; or
(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that
(i) is for relief against the Company, the Guarantor or any of Significant Subsidiary in
an involuntary case or proceeding;
(ii) appoints a trustee, receiver, liquidator, custodian or other similar official of the
Company, the Guarantor or a Significant Subsidiary or any substantial part of the
property of the Company, the Guarantor or a Significant Subsidiary; or
(iii) orders the liquidation of the Company, the Guarantor or a Significant Subsidiary; ,
in each case in this clause (g), the order or decree remains unstayed and in effect for
thirty (30) calendar days.
The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or State law for the
relief of debtors.
Section 7.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to the Notes at the time outstanding occurs and is
continuing (other than an Event of Default referred to in Sections 7.1(f), 7.1(g) or 7.1(h), which
shall result in an automatic acceleration), then in every such case the Trustee or the Holders of not
less than 25% in principal amount of the outstanding Notes may declare the principal amount of
and accrued and unpaid interest, if any, on all of the outstanding Notes to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given by Holders) ), and
upon any such declaration such principal amount (or specified amount) and accrued and unpaid
interest, if any, shall become immediately due and payable. If an Event of Default specified in
Sections 7.1(f), 7.1(g) or 7.1(h) shall occur, the principal amount (or specified amount) of and
accrued and unpaid interest, if any, on all outstanding Notes shall automatically become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any
Holder.
28
US-DOCS\51573375.10
At any time after the principal amount of and premium, if any, and interest on the Notes
shall have been so declared due and payable, and before any judgment or decree for the payment of
the monies due shall have been obtained or entered as hereinafter provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding on behalf of the Holders of all of the
Notes then outstanding, by written notice to the Company and to the Trustee, may waive all
Defaults or Events of Default and rescind and annul such declaration and its consequences, subject
in all respects to Section 6.13 of the Base Indenture, if: (a) the Company or the Guarantor has
deposited with the Trustee all required payments of the principal of, and premium, if any, and
interest on, the Notes, plus the reasonable compensation and reimbursement for the Trustee’s
expenses, disbursements and advances pursuant to Section 7.7 of the Base Indenture; and (b) all
Events of Default, other than the non-payment of accelerated principal of (or specified portion
thereof), or premium, if any, and interest on, the Notes that have become due solely because of
such acceleration, have been cured or waived. No such rescission and annulment shall extend to or
shall affect any subsequent default or Event of Default, or shall impair any right consequent
thereon. The Company shall notify in writing a Responsible Officer of the Trustee, promptly upon
becoming aware thereof, of any Event of Default, as provided in Section 4.3 of the Base Indenture
and the steps to be taken to cure such Event of Default.
ARTICLE VIII
AMENDMENTS AND WAIVERS
Sections 8.1 and 8.2 hereof shall replace Sections 9.1 and 9.2 of the Base Indenture with
respect to the Notes only.
Section 8.1 Without Consent of Holders.
The Company, when authorized by resolutions of the board of managers of the General
Partner and the board of directors of the Guarantor, and the Trustee may, from time to time and at
any time, enter into an indenture or indentures supplemental without the consent of the Holders of
the Notes hereto for one or more of the following purposes:
(a) to cure any ambiguity, defect or inconsistency in the Indenture;
provided that this action shall not adversely affect the interests of the Holders of the Notes in
any material respect;
(b) to evidence a successor to the Company as obligor or to the Guarantor
as guarantor under the Indenture;
(c) to make any change that does not adversely affect the interests of the
Holders of any Notes then outstanding;
(d) to provide for the issuance of Additional Notes in accordance with the
limitations set forth in the Indenture;
(e) to provide for the acceptance of appointment of a successor Trustee or
facilitate the administration of the trusts under the Indenture by more than one Trustee;
(f) to comply with the requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the TIA;
(g) to reflect the release of the Guarantor as guarantor, in accordance with
the Indenture;
(h) to secure the Notes;
(i) to add guarantors with respect to the Notes; and
(j) to conform the text of the Indenture, any Guarantee or the Notes to any
provision of the description thereof set forth in the Prospectus to the extent that such provision
in the Prospectus was intended to be a verbatim recitation of a provision of the Indenture, such
Note Guarantee or the Notes (as certified in an Officer’s Certificate).
Upon the written request of the Company, accompanied by a copy of the resolutions of the
29
US-DOCS\51573375.10
board of managers of the General Partner and the board of directors of the Guarantor, in each case,
certified by the corresponding Secretary or Assistant Secretary, authorizing the execution of any
supplemental indenture, the Trustee is hereby authorized to join with the Company and the
Guarantor in the execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations that may be therein contained and to accept the conveyance, transfer
and assignment of any property thereunder, but the Trustee shall not be obligated to, but may in its
discretion, enter into any supplemental indenture that affects the Trustee’s own rights, duties or
immunities under the Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 8.1 may be
executed by the Company, the Guarantor and the Trustee without the consent of the Holders of any
of the Notes at the time outstanding, notwithstanding any of the provisions of Section 8.2.
Section 8.2 With Consent of Holders.
With the consent of the Holders of not less than a majority in aggregate principal amount of
the Notes at the time outstanding, the Company, the Guarantor and the Trustee may, from time to
time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the provisions of the
Indenture or any supplemental indenture or modifying in any manner the rights of the Holders of
the Notes; provided that no such supplemental indenture shall, without the consent of the Holder of
each Note so affected:
(a) reduce the principal amount of the Notes whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest (including
default interest) on the Notes;
(c) reduce the principal of or premium, if any, on or change the Stated Maturity
of the Notes;
(d) waive a Default or Event of Default in the payment of the principal of or
premium, if any, or interest on the Notes (except a rescission of acceleration of the Notes by the
Holders of at least a majority in aggregate principal amount of the then outstanding Notes and a
waiver of the payment default that resulted from such acceleration);
(e) make the principal of or premium, if any, or interest on the Notes payable in
any currency other than that stated in the Notes;
(f) make any change in Section 6.8 of the Base Indenture, 6.13 of the Base
Indenture or Section 8.2(f) of this First Supplemental Indenture (this sentence);
(g) waive a redemption payment with respect to the Notes; or
(h) release the Guarantor other than as provided in the Indenture or modify the
Guarantee in any manner adverse to the Holders.
Upon the written request of the Company, accompanied by a copy of the resolutions of the
board of managers of the General Partner and the board of directors of the Guarantor, in each case,
certified by the corresponding Secretary or Assistant Secretary, authorizing the execution of any
such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of
Holders as aforesaid, the Trustee shall join with the Company and the Guarantor in the execution
of such supplemental indenture unless such supplemental indenture affects the Trustee’s own
rights, duties or immunities under the Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental indenture. In executing or
accepting the additional trusts created by, any supplemental indenture permitted by this Article or
the modification thereby of the trusts created by the Indenture, the Trustee shall be entitled to
receive, and shall be fully protected in relying upon, an Opinion of Counsel or an Officer’s
Certificate or both stating that the execution of such supplemental indenture is authorized or
permitted by the Indenture, that all conditions precedent to the execution of such supplemental
indenture have been complied with, and that the supplemental indenture is a legal, valid and
binding obligation of the Company and the Guarantor as applicable, enforceable against it in
accordance with its terms.
30
US-DOCS\51573375.10
It shall not be necessary for the consent of the Holders under this Section 8.2 to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
ARTICLE IX
MEETINGS OF HOLDERS OF NOTES
Section 9.1 Purposes for Which Meetings May Be Called.
A meeting of Holders may be called at any time and from time to time pursuant to this
Article IX to make, give or take any request, demand, authorization, direction, notice, consent,
waiver or other act provided by the Indenture to be made, given or taken by Holders.
Section 9.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders for any purpose
specified in Section 9.1, to be held at such time and at such place in The City of New York, New
York as the Trustee shall determine. Notice of every meeting of Holders, 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 10.2 of the Base Indenture, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, the Guarantor or the Holders of at least
10% in principal amount of the outstanding Notes shall have requested the Trustee to call a
meeting of the Holders for any purpose specified in Section 9.1, 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 or shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company, the Guarantor, if applicable, or the Holders in the amount above
specified, as the case may be, may determine the time and the place in the City of New York, New
York, for such meeting and may call such meeting for such purposes by giving notice thereof as
provided in clause (a) of this Section 9.2.
Section 9.3 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders, a person shall be (a) a Holder of one or
more outstanding Notes, or (b) a person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more outstanding Notes by such Holder or Holders; provided, that
none of the Company, any other obligor upon the Notes or any Affiliate of the Company shall be
entitled to vote at any meeting of Holders or be counted for purposes of determining a quorum at
any such meeting in respect of any Notes owned by such persons. The only persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the persons entitled to vote at
such meeting and their counsel, any representatives of the Trustee and its counsel, any
representatives of the Guarantor and its counsel and any representatives of the Company and its
counsel.
Section 9.4 Quorum; Action.
The persons entitled to vote a majority in principal amount of the outstanding Notes shall
constitute a quorum for a meeting of Holders; provided, however, that if any action is to be taken at
the meeting with respect to a consent or waiver which may be given by the Holders of not less than
a specified percentage in principal amount of the outstanding Notes, the persons holding or
representing the specified percentage in principal amount of the outstanding Notes will 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, 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
9.2, 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
31
US-DOCS\51573375.10
meeting shall state expressly the percentage, as provided above, of the principal amount of the
outstanding Notes which shall constitute a quorum.
Except as limited by the proviso to Section 8.2, any resolution presented at 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 principal amount of the outstanding Notes;
provided, however, that, except as limited by the proviso to Section 8.2, any resolution with
respect to any request, demand, authorization, direction, notice, consent, waiver or other action
which the Indenture expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the outstanding Notes 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 specified percentage in principal amount
of the outstanding Notes. Any such resolution passed or decision taken at any meeting of Holders
duly held in accordance with this Section 9.4 shall be binding on all the Holders, whether or not
such Holders were present or represented at the meeting.
Section 9.5 Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any other provisions of the Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of Holders in regard to
proof of the holding of Notes 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.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the Company or by Holders
as provided in Section 9.2(b), in which case the Company, the Guarantor or the Holders 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 principal amount of the outstanding Notes of such series represented at the
meeting.
(c) At any meeting, each Holder or proxy shall be entitled to one vote for each
$1,000 principal amount of Notes held or represented by him; provided, however, that no vote
shall be cast or counted at any meeting in respect of any Note challenged as not outstanding and
ruled by the chairman of the meeting to be not outstanding. The chairman of the meeting shall have
no right to vote, except as a Holder or proxy.
(d) Any meeting of Holders duly called pursuant to Section 9.2 at which a
quorum is present may be adjourned from time to time by persons entitled to vote a majority in
principal amount of the outstanding Notes represented at the meeting; and the meeting may be held
as so adjourned without further notice.
Section 9.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders shall be by written
ballots on which shall be subscribed the signatures of the Holders or of their representatives by
proxy and the principal amounts and serial numbers of the outstanding Notes 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 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 9.2 and, if applicable, Section 9.4. 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 the Company and the 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.
32
US-DOCS\51573375.10
ARTICLE X
MISCELLANEOUS PROVISIONS
Section 10.1 Evidence of Compliance with Conditions Precedent, Certificates to Trustee.
This Section 10.1 shall replace Sections 10.4 and 10.5 of the Base Indenture with respect to
the Notes only.
Upon any application or demand by the Company to the Trustee to take any action under
any of the provisions of the Indenture, the Company shall furnish to the Trustee an Officer’s
Certificate in a form reasonably acceptable to the Trustee stating that all conditions precedent, if
any, provided for in the Indenture relating to the proposed action have been complied with, and an
Opinion of Counsel in a form reasonably acceptable to the Trustee stating that, in the opinion of
such counsel, all such conditions precedent have been complied with. The Officer’s Certificate or
Opinion of Counsel provided for in the Indenture and delivered to the Trustee with respect to
compliance with a condition or covenant provided for in the Indenture shall include: (1) a
statement that the person making such Officer’s Certificate or Opinion of Counsel has read such
covenant or condition; (2) a brief statement as to the nature and scope of the examination or
investigation upon which the statement or opinion contained in such Officer’s Certificate or
Opinion of Counsel is based; (3) a statement that, in the opinion of such person, such person has
made such examination or investigation as is necessary to enable such 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 such person, such condition or covenant has been
complied with; provided, however, that with respect to matters of fact an Opinion of Counsel may
rely on an Officer’s Certificate or certificates of public officials.
Section 10.2 No Recourse Against Others.
This Section 10.2 shall replace Section 10.8 of the Base Indenture with respect to the Notes
only.
Except as otherwise expressly provided in Article V of this First Supplemental Indenture,
no recourse for the payment of the principal of (including the Redemption Price upon redemption
pursuant to Article IV) or premium, if any, or interest on any Note or for any claim based thereon
or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company in this First Supplemental Indenture or in any Note, or because of the
creation of any indebtedness represented thereby, shall be had against any incorporator,
stockholder, partner, member, manager, employee, agent, officer, director or subsidiary, as such,
past, present or future, of the Guarantor, the Company or any of the Company’s Subsidiaries or of
any successor thereto, either directly or through the Guarantor, the Company or any of the
Company’s Subsidiaries or any successor thereto, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a condition of, and as
a consideration for, the execution of this First Supplemental Indenture and the issue of the Notes.
Section 10.3 Trust Indenture Act Controls.
If any provision of this First Supplemental Indenture limits, qualifies, or conflicts with
another provision which is required or deemed to be included in this First Supplemental Indenture
by the TIA, such required or deemed provision shall control.
Section 10.4 Governing Law.
THIS FIRST SUPPLEMENTAL INDENTURE AND THE NOTES, INCLUDING ANY
CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE BASE
INDENTURE, FIRST SUPPLEMENTAL INDENTURE OR THE NOTES, SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
Section 10.5 Counterparts.
This First Supplemental Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement. The
33
US-DOCS\51573375.10
exchange of copies of this First Supplemental Indenture and of signature pages by facsimile or
PDF transmission shall constitute effective execution and delivery of this First Supplemental
Indenture as to the parties hereto and may be used in lieu of the original First Supplemental
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.
Section 10.6 Successors.
All agreements of the Company and the Guarantor in this First Supplemental Indenture and
the Notes shall bind their respective successors. All agreements of the Trustee in this First
Supplemental Indenture shall bind its successor.
Section 10.7 Severability.
In case any provision in this First Supplemental Indenture or in the Notes shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby.
Section 10.8 Table of Contents, Headings, Etc.
The Table of Contents and headings of the Articles and Sections of this First Supplemental
Indenture have been inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.9 Ratifications.
The Base Indenture, as supplemented and amended by this First Supplemental Indenture, is
in all respects ratified and confirmed. The Indenture shall be read, taken and construed as one and
the same instrument. All provisions included in this First Supplemental Indenture with respect to
the Notes supersede any conflicting provisions included in the Base Indenture unless not permitted
by law. The Trustee accepts the trusts created by the Indenture, and agrees to perform the same
upon the terms and conditions of the Indenture.
Section 10.10 Effectiveness.
The provisions of this First Supplemental Indenture shall become effective as of the date
hereof.
Section 10.11 The Trustee.
The Trustee accepts the trusts created by the Indenture, and agrees to perform the same
upon the terms and conditions of the Indenture. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or
the due execution thereof by the Company. The recitals contained herein shall be taken as the
statements solely of the Company, and the Trustee assumes no responsibility for the correctness
thereof. If and when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Notes), excluding any creditor relationship listed in TIA Section 311(b), the
Trustee shall be subject to the provisions of the TIA regarding the collection of the claims against
the Company (or any such other obligor). If the Trustee has or shall acquire a conflicting interest
within the meaning of the TIA, the Trustee shall either eliminate such interest or resign, to the
extent and in the manner provided by, and subject to the provisions of, the TIA and the Indenture.
A-1
US-DOCS\51573375.10
EXHIBIT A
SPIRIT REALTY, L.P.
THIS GLOBAL NOTE IS HELD BY THE DEPOSITORY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF
THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER
ANY CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS
HEREON AS MAY BE REQUIRED PURSUANT TO SECTION 3.2 OF THE FIRST
SUPPLEMENTAL INDENTURE, (II) THIS GLOBAL NOTE MAY BE EXCHANGED IN WHOLE
BUT NOT IN PART PURSUANT TO SECTION 3.2 OF THE FIRST SUPPLEMENTAL INDENTURE,
(III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION
PURSUANT TO SECTION 2.12 OF THE BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAY
BE TRANSFERRED TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT
OF THE COMPANY. AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY
THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (00
XXXXX XXXXXX, XXX XXXX, XXX XXXX) (“DTC”) TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED
IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-2
US-DOCS\51573375.10
SPIRIT REALTY, L.P.
4.450% NOTES DUE 2026
Certificate No. [ ]
CUSIP No.: [ ]
ISIN: [ ]
$[ ]
Spirit Realty, L.P., a Delaware limited partnership (herein called the “Company”, which term includes any
successor corporation under the Indenture referred to on the reverse hereof), for value received hereby
promises to pay to Cede & Co., or its registered assigns, the principal sum of [ ] MILLION DOLLARS
($[ ])[, or such lesser amount as is set forth in the Schedule of Exchanges of Interests in the Global Note
on the other side of this Note,] on September 15, 2026 at the office or agency of the Company maintained
for that purpose in accordance with the terms of the Indenture, in such coin or currency of the United
States of America as at the time of payment shall be legal tender for the payment of public and private
debts, and to pay interest semi-annually in arrears on March 15 and September 15 of each year,
commencing on March 15, 2017 to the Holder in whose name the Note is registered in the security register
on the preceding March 1 or September 1, whether or not a Business Day, as the case may be, in
accordance with the terms of the Indenture. Interest on the Notes will be computed on the basis of a
360-day year consisting of twelve 30-day months. The Company shall pay interest on any Notes in
certificated form by check mailed to the address of the person entitled thereto; provided, however, that a
Holder of any Notes in certificated form in the aggregate principal amount of more than $2,000,000 may
specify by written notice to the Company that it pay interest by wire transfer of immediately available
funds to the account specified by the Holder in such notice, or on any Global Notes by wire transfer of
immediately available funds to the account of the Depositary or its nominee. This Note shall not be valid
or become obligatory for any purpose until the certificate of authentication hereon shall have been signed
manually or by facsimile by the Trustee or a duly authorized authenticating agent under the Indenture.
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
Dated: August 18, 2016
SPIRIT REALTY, L.P.
By: Spirit General OP Holdings, LLC, Its Sole
General Partner
By:
Name:
Title:
A-3
US-DOCS\51573375.10
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture. : [ ], 20[ ]
U.S. BANK NATIONAL ASSOCIATION, as
Trustee
By:
Authorized Signatory
A-4
US-DOCS\51573375.10
[FORM OF REVERSE SIDE OF NOTE]
SPIRIT REALTY, L.P.
4.450% NOTES DUE 2026
This Note is one of a duly authorized issue of Securities of the Company, designated as its 4.450% Notes
due 2026 (herein called the “Notes”), issued under and pursuant to an Indenture dated as of August 18,
2016 (herein called the “Base Indenture”), among the Company, the Guarantor and U.S. Bank National
Association, as trustee (herein called the “Trustee”), as supplemented by the First Supplemental
Indenture, dated as of August 18, 2016 (herein called the “First Supplemental Indenture,” and together
with the Base Indenture, the “Indenture”), to which Indenture and all indentures supplemental thereto
reference is hereby made for a description of the rights, limitations of rights, obligations, duties and
immunities thereunder of the Trustee, the Company and the Holders of the Notes. Capitalized terms used
but not otherwise defined in this Note shall have the respective meanings ascribed thereto in the Indenture.
If an Event of Default (other than an Event of Default specified in Sections 7.1(f), 7.1(g) and 7.1(h) of the
First Supplemental Indenture with respect to the Company) occurs and is continuing, the principal of,
premium, if any, and accrued and unpaid interest on all Notes may be declared to be due and payable by
either the Trustee or the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding, and, upon said declaration the same shall be immediately due and payable. If an Event of
Default specified in Sections 7.1(f), 7.1(g) and 7.1(h) of the First Supplemental Indenture occurs with
respect to the Company, the principal of and premium, if any, and interest accrued and unpaid on all the
Notes shall be immediately and automatically due and payable without necessity of further action.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of the
Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding, to
execute supplemental indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying in any manner the rights
of the Holders of the Notes, subject to exceptions set forth in Section 8.2 of the First Supplemental
Indenture. Subject to the provisions of the Indenture, the Holders of not less than a majority in aggregate
principal amount of the Notes at the time outstanding may, on behalf of the Holders of all of the Notes,
waive any past default or Event of Default, subject to exceptions set forth in the Indenture.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall impair, as
among the Company and the Holder of the Notes, the obligation of the Company, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this Note at the place, at the
respective times, at the rate and in the coin or currency prescribed herein and in the Indenture.
Interest on the Notes shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
The Notes are issuable in fully registered form, without coupons, in denominations of $2,000 principal
amount and any multiple of $1,000. At the office or agency of the Company referred to on the face hereof,
and in the manner and subject to the limitations provided in the Indenture, without payment of any service
charge but with payment of a sum sufficient to cover any tax, assessment or other governmental charge
that may be imposed in connection with any registration or exchange of Notes, Notes may be exchanged
for a like aggregate principal amount of Notes of any other authorized denominations.
The Company shall have the right to redeem the Notes under certain circumstances as set forth in Section
4.1, Section 4.2 and Section 4.3 of the First Supplemental Indenture.
The Notes are not subject to redemption through the operation of any sinking fund.
Except as expressly provided in Article V of the First Supplemental Indenture, no recourse for the
payment of the principal of (including the Redemption Price (as defined in Section 4.1 of the First
Supplemental Indenture) upon redemption pursuant to Article IV of the First Supplemental Indenture) or
any premium, if any, or interest on this Note, or for any claim based hereon or otherwise in respect hereof,
and no recourse under or upon any obligation, covenant or agreement of the Company in the Indenture or
in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, partner, member, manager, employee, agent, officer, director or subsidiary, as
such, past, present or future, of the Guarantor, the Company or any of the Company’s Subsidiaries or of
any successor thereto, either directly or through the Guarantor, the Company or any of the Company’s
subsidiaries or of any successor thereto, whether by virtue of any constitution, statute or rule of law, or by
the enforcement of any assessment or penalty or otherwise; it being expressly understood that all such
liability is hereby expressly waived and released as a condition of, and as consideration for, the execution
of the Indenture and the issue of this Note.
A-5
US-DOCS\51573375.10
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this
Note to:
(Insert assignee’s legal name)
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably
appoint
to transfer this Note on the books of the Company. The agent may substitute another to act for him.
Date:
Your
Signature:
(Sign exactly as your name appears on the face of
this Note)
Signature
Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor
acceptable to the Trustee).
A-6
US-DOCS\51573375.10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE *
The following exchanges of a part of this Global Note for an interest in another Global Note or for a
Definitive Note, or exchanges of a part of another Global Note or Definitive Note for an interest in this
Global Note, have been made:
Date of
Exchange
Amount of
decrease in
principal amount
at maturity of
this Global Note
Amount of
increase in
principal amount
at maturity of
this Global Note
Principal amount
at maturity of
this Global Note
following such
decrease
(or increase)
Signature of
authorized
officer of Trustee
or Custodian
* This schedule should be included only if the Note is issued in global form.
A-7
US-DOCS\51573375.10
FORM OF CERTIFICATE OF TRANSFER
Spirit Realty, L.P.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Investor Relations
U.S. Bank National Association
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services
Re: 4.450% Senior Notes Due 2026
Reference is hereby made to the Indenture, dated as of August 18, 2016, between Spirit Realty,
L.P., as issuer (the “Company”) and U.S. Bank National Association, as trustee, as supplemented by the
First Supplemental Indenture, dated as of August 18, 2016, among the Company, the Guarantor party
thereto and the Trustee (as so supplemented, the “Indenture”). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
___________________, (the “Transferor”) owns and proposes to transfer the Note[s] or interest in
such Note[s] specified in Annex A hereto, in the principal amount of $___________ in such Note[s] or
interests (the “Transfer”), to ___________________________ (the “Transferee”), as further specified in
Annex A hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. Check if Transferee will take delivery of a beneficial interest in the 144A Global Note
or a Restricted Definitive Note pursuant to Rule 144A. The Transfer is being effected pursuant to and
in accordance with Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and,
accordingly, the Transferor hereby further certifies that the beneficial interest or Definitive Note is being
transferred to a Person that the Transferor reasonably believes is purchasing the beneficial interest or
Definitive Note for its own account, or for one or more accounts with respect to which such Person
exercises sole investment discretion, and such Person and each such account is a “qualified institutional
buyer” within the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A, and
such Transfer is in compliance with any applicable blue sky securities laws of any state of the United
States. Upon consummation of the proposed Transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the 144A Global Note and/or the Restricted Definitive Note
and in the Indenture and the Securities Act.
2. Check if Transferee will take delivery of a beneficial interest in the Regulation S
Global Note or a Restricted Definitive Note pursuant to Regulation S. The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to a Person in the United States
and (x) at the time the buy order was originated, the Transferee was outside the United States or such
Transferor and any Person acting on its behalf reasonably believed and believes that the Transferee was
outside the United States or (y) the transaction was executed in, on or through the facilities of a designated
offshore securities market and neither such Transferor nor any Person acting on its behalf knows that the
transaction was prearranged with a buyer in the United States, (ii) no directed selling efforts have been
made in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S under the
Securities Act, (iii) the transaction is not part of a plan or scheme to evade the registration requirements of
the Securities Act and (iv) if the proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or benefit of a U.S. Person. Upon
consummation of the proposed transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will be subject to the restrictions on Transfer enumerated in the
Private Placement Legend printed on the Regulation S Global Note and/or the Restricted Definitive Note
and in the Indenture and the Securities Act.
3. Check and complete if Transferee will take delivery of a beneficial interest in a
Restricted Definitive Note pursuant to any provision of the Securities Act other than Rule 144A or
Regulation S. The Transfer is being effected in compliance with the transfer restrictions applicable to
beneficial interests in Restricted Global Notes and Restricted Definitive Notes and pursuant to and in
A-8
US-DOCS\51573375.10
accordance with the Securities Act and any applicable blue sky securities laws of any state of the United
States, and accordingly the Transferor hereby further certifies that (check one):
(a) such Transfer is being effected pursuant to and in accordance with Rule
144 under the Securities Act;
OR
(b) such Transfer is being effected to the Company or a subsidiary thereof;
OR
(c) such Transfer is being effected pursuant to an effective registration
statement under the Securities Act and in compliance with the prospectus delivery
requirements of the Securities Act;
OR
(d) such Transfer is being effected pursuant to an exemption from the
registration requirements of the Securities Act other than Rule 144A, Rule 144, Rule 903
or Rule 904, and the Transferor hereby further certifies that it has not engaged in any
general solicitation within the meaning of Regulation D under the Securities Act and the
Transfer complies with the transfer restrictions applicable to beneficial interests in a
Restricted Global Note or Restricted Definitive Notes and the requirements of the
exemption claimed, which certification is supported by (1) a certificate executed by the
Transferee in the form of Exhibit D to the Indenture and (2) if such Transfer is in respect
of a principal amount of Notes at the time of transfer of less than $250,000, an Opinion of
Counsel provided by the Transferor or the Transferee (a copy of which the Transferor has
attached to this certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note will be
subject to the restrictions on transfer enumerated in the Private Placement Legend printed
on the Restricted Definitive Notes and in the Indenture and the Securities Act.
4. Check if Transferee will take delivery of a beneficial interest in an Unrestricted
Global Note or of an Unrestricted Definitive Note.
(a) Check if Transfer is pursuant to Rule 144. (i) The Transfer is being effected pursuant to
and in accordance with Rule 144 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any state of the United States and
(ii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred beneficial interest or Definitive
Note will no longer be subject to the restrictions on transfer enumerated in the Private Placement Legend
printed on the Restricted Global Notes, on Restricted Definitive Notes and in the Indenture.
(b) Check if Transfer is Pursuant to Regulation S. (i) The Transfer is being effected
pursuant to and in accordance with Rule 903 or Rule 904 under the Securities Act and in compliance with
the transfer restrictions contained in the Indenture and any applicable blue sky securities laws of any state
of the United States and (ii) the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the Securities Act. Upon
consummation of the proposed Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Global Notes, on Restricted Definitive Notes and
in the Indenture.
(c) Check if Transfer is Pursuant to Other Exemption. (i) The Transfer is being effected
pursuant to and in compliance with an exemption from the registration requirements of the Securities Act
other than Rule 144, Rule 903 or Rule 904 and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any State of the United States and (ii) the
restrictions on transfer contained in the Indenture and the Private Placement Legend are not required in
order to maintain compliance with the Securities Act. Upon consummation of the proposed Transfer in
accordance with the terms of the Indenture, the transferred beneficial interest or Definitive Note will not
be subject to the restrictions on transfer enumerated in the Private Placement Legend printed on the
Restricted Global Notes or Restricted Definitive Notes and in the Indenture.
A-9
US-DOCS\51573375.10
This certificate and the statements contained herein are made for your benefit and the benefit of the
Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: _______________________
A-10
US-DOCS\51573375.10
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) a beneficial interest in the.
(i) 144A Global Note (CUSIP _________), or
(ii) Regulation S Global Note (CUSIP _________), or
(b) a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) a beneficial interest in the:
(i) 144A Global Note (CUSIP _________), or
(ii) Regulation S Global Note (CUSIP _________), or
(iii) Unrestricted Global Note (CUSIP _________); or
(b) a Restricted Definitive Note; or
(c) an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
A-11
US-DOCS\51573375.10
FORM OF CERTIFICATE OF EXCHANGE
Spirit Realty, L.P.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Investor Relations
U.S. Bank National Association
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services
Re: 4.450% Senior Notes Due 2026
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of August 18, 2016, between Spirit Realty,
L.P., as issuer (the “Company”) and U.S. Bank National Association, as trustee, as supplemented by the
First Supplemental Indenture, dated as of August 18, 2016, among the Company, the Guarantor party
thereto and the Trustee (as so supplemented, the “Indenture”). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
__________________________, (the “Owner”) owns and proposes to exchange the Note[s] or
interest in such Note[s] specified herein, in the principal amount of $____________ in such Note[s] or
interests (the “Exchange”). In connection with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests in a Restricted Global
Note for Unrestricted Definitive Notes or Beneficial Interests in an Unrestricted Global Note
(a) Check if Exchange is from beneficial interest in a Restricted Global Note to beneficial
interest in an Unrestricted Global Note. In connection with the Exchange of the Owner’s beneficial
interest in a Restricted Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to the Global Notes and pursuant to and in accordance with the Securities Act of
1933, as amended (the “Securities Act”), (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act and
(iv) the beneficial interest in an Unrestricted Global Note is being acquired in compliance with any
applicable blue sky securities laws of any state of the United States.
(b) Check if Exchange is from beneficial interest in a Restricted Global Note to
Unrestricted Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a
Restricted Global Note for an Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive
Note is being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected
in compliance with the transfer restrictions applicable to the Restricted Global Notes and pursuant to and
in accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act and
(iv) the Definitive Note is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(c) Check if Exchange is from Restricted Definitive Note to beneficial interest in an
Unrestricted Global Note. In connection with the Owner’s Exchange of a Restricted Definitive Note for
a beneficial interest in an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner’s own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive Notes and pursuant to and in
accordance with the Securities Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with the Securities Act and
(iv) the beneficial interest is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(d) Check if Exchange is from Restricted Definitive Note to Unrestricted Definitive Note.
In connection with the Owner’s Exchange of a Restricted Definitive Note for an Unrestricted Definitive
Note, the Owner hereby certifies (i) the Unrestricted Definitive Note is being acquired for the Owner’s
own account without transfer, (ii) such Exchange has been effected in compliance with the transfer
restrictions applicable to Restricted Definitive Notes and pursuant to and in accordance with the Securities
A-12
US-DOCS\51573375.10
Act, (iii) the restrictions on transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the Unrestricted Definitive Note
is being acquired in compliance with any applicable blue sky securities laws of any state of the United
States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests in Restricted Global
Notes for Restricted Definitive Notes or Beneficial Interests in Restricted Global Notes
(a) Check if Exchange is from beneficial interest in a Restricted Global Note to Restricted
Definitive Note. In connection with the Exchange of the Owner’s beneficial interest in a Restricted
Global Note for a Restricted Definitive Note with an equal principal amount, the Owner hereby certifies
that the Restricted Definitive Note is being acquired for the Owner’s own account without transfer. Upon
consummation of the proposed Exchange in accordance with the terms of the Indenture, the Restricted
Definitive Note issued will continue to be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the Restricted Definitive Note and in the Indenture and the Securities Act.
(b) Check if Exchange is from Restricted Definitive Note to beneficial interest in a
Restricted Global Note. In connection with the Exchange of the Owner’s Restricted Definitive Note for
a beneficial interest in the [CHECK ONE] 144A Global Note, Regulation S Global Note, with an
equal principal amount, the Owner hereby certifies (i) the beneficial interest is being acquired for the
Owner’s own account without transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to and in accordance with the
Securities Act, and in compliance with any applicable blue sky securities laws of any state of the United
States. Upon consummation of the proposed Exchange in accordance with the terms of the Indenture, the
beneficial interest issued will be subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and the Securities Act.
This certificate and the statements contained herein are made for your benefit and the benefit of the
Company.
[Insert Name of Transferor]
By:
Name:
Title:
Dated: ______________________
A-13
US-DOCS\51573375.10
FORM OF CERTIFICATE FROM
TRANSFEREE
Spirit Realty, L.P.
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Investor Relations
U.S. Bank National Association
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Services
Re: 4.450% Senior Notes Due 2026
Reference is hereby made to the Indenture, dated as of August 18, 2016, between Spirit Realty,
L.P., as issuer (the “Company”) and U.S. Bank National Association, as trustee, as supplemented by the
First Supplemental Indenture, dated as of August 18, 2016, among the Company, the Guarantor party
thereto and the Trustee (as so supplemented, the “Indenture”). Capitalized terms used but not defined
herein shall have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate principal amount of:
(a) a beneficial interest in a Global Note, or
(b) a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or any interest therein is subject to
certain restrictions and conditions set forth in the Indenture and the undersigned agrees to be bound by,
and not to resell, pledge or otherwise transfer the Notes or any interest therein except in compliance with,
such restrictions and conditions and the Securities Act of 1933, as amended (the “Securities Act”).
2. We understand that the offer and sale of the Notes have not been registered under the
Securities Act, and that the Notes and any interest therein may not be offered or sold except as permitted in
the following sentence. We agree, on our own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, that if we should sell the Notes or any interest therein, we will do so only (A)
to the Company; (B) under a registration statement that has been declared effective under the Securities
Act; (C) to a Person that we reasonably believe is a “Qualified Institutional Buyer” (as defined in Rule
144A under the Securities Act) that is purchasing for its own account or for the account of another
Qualified Institutional Buyer and to whom notice is given that the transfer is being made in reliance on
Rule 144A, all in compliance with Rule 144A (if available); (D) in an offshore transaction complying with
Rule 903 or Rule 904 of Regulation S under the Securities Act; or (E) under any other available exemption
from the registration requirements of the Securities Act.
3. We understand that, prior to any transfer of the Notes pursuant to clause (E) of paragraph 2,
we will be required to furnish to the Company such legal opinions as the Company may require and may
rely upon to confirm that such transfer is being made pursuant to an exemption from, or in a transaction
not subject to, the registration requirements of the Securities Act. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect. We understand that we may also be required to
furnish to you and the Company such certifications and other information as you or the Company may
require and may rely upon to confirm that any transfer is being made pursuant to an exemption from, or in
a transaction not subject to, the registration requirements of the Securities Act.
4. We have such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we and any accounts for which we
are acting are each able to bear the economic risk of our or its investment.
5. We are not acquiring the Notes with a view towards any distribution thereof in a
transaction that would violate the Securities Act or the securities laws of any state of the United States or
any other applicable jurisdiction. We are acquiring the Notes or beneficial interest therein purchased by us
for our own account or for one or more accounts as to each of which we exercise sole investment
discretion and on behalf of which we have the full power to make the foregoing acknowledgments,
representations and agreements.
A-14
US-DOCS\51573375.10
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce
this letter or a copy hereof to any interested party in any administrative or legal proceedings or official
inquiry with respect to the matters covered hereby. We understand that you and the Company and others
will rely upon the truth and accuracy of the foregoing acknowledgments, representations and agreements
and agree that, if any of the foregoing acknowledgments, representations and agreements is no longer
accurate, we will promptly notify you and the Company of such inaccuracy.
[Insert Name of Transferee]
By:
Name:
Title:
Dated: _______________________
