Form 8-K - Current report

AMERICOLD REALTY TRUST false 0001455863 0001455863 2024-09-12 2024-09-12

STRICTLY CONFIDENTIAL

 

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): September 12, 2024

 

 

AMERICOLD REALTY TRUST, INC.

(Exact name of registrant as specified in its charter)

 

 

 

Maryland		001-34723		93-0295215
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

10 Glenlake Parkway, South Tower, Suite 600

Atlanta, Georgia, 30328

(Address of principal executive offices and zip code)

[phone]

Registrant’s telephone number, including area code:

N/A

(Former name or former address, if changed since last report.)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol		Name of each exchange on which registered
Common Stock, $0.01 par value per share		COLD		New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

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Item 1.01

Entry into a Material Definitive Agreement.

The information set forth in Item 2.03 of this Current Report on Form 8-K is incorporated by reference into this Item 1.01.

 

Item 2.03

Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

On September 12, 2024, Americold Realty Operating Partnership, L.P., a Delaware limited partnership (the “Operating Partnership”), completed an underwritten public offering of $500,000,000 aggregate principal amount of its 5.409% Notes due 2034 (the “Notes”). The Notes were offered pursuant to an effective shelf registration statement filed with the Securities and Exchange Commission (the “Commission”) on March 17, 2023 (Registration Nos. 333-270664 and 333-270664-01) as amended by a Post-Effective Amendment thereto filed with the Commission on September 3, 2024 (Registration Nos. 333-270664, 333-270664-01, 333-270664-02, 333-270664-03, 333-270664-04 and 333-270664-05), a base prospectus, dated March 17, 2023, and a prospectus supplement, dated September 5, 2024 (the “Prospectus Supplement”), filed with the Commission on September 9, 2024 pursuant to Rule 424(b)(5) under the Securities Act of 1933, as amended (the “Securities Act”).

The Notes are fully and unconditionally guaranteed, jointly and severally (the “Guarantees” and, together with the Notes, the “Securities”) by Americold Realty Trust, Inc., a Maryland corporation and the general partner of the Operating Partnership (the “Company”), Americold Realty Operations, Inc., a Delaware corporation and wholly-owned subsidiary of the Company and a limited partner of the Operating Partnership (the “Limited Partner” and, together with the Company, the “Parent Guarantors”), Americold Australian Holdings Pty Ltd, a limited company organized under the laws of Australia (“Americold Australia”), Icecap Properties NZ Limited, a limited company organized under the laws of New Zealand (“Icecap”), and Nova Cold Logistics ULC, an unlimited company organized under the laws of Nova Scotia, Canada (“Nova Cold” and, together with Americold Australia and Icecap, the “Subsidiary Guarantors” and the Subsidiary Guarantors, together with the Parent Guarantors, the “Guarantors”). The terms of the Securities are governed by an Indenture, dated as of September 12, 2024 (the “Base Indenture”), by and among the Operating Partnership, the Guarantors and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by a First Supplemental Indenture, dated as of September 12, 2024 (the “First Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), by and among the Operating Partnership, the Guarantors and the Trustee. The Indenture contains various restrictive covenants, including (without limitation) limitations on the ability of the Operating Partnership or any of the Guarantors to consummate a merger, consolidation or sale of all or substantially all of their respective assets, limitations on the ability of the Company and its subsidiaries to incur secured and unsecured indebtedness and a requirement to maintain a certain percentage of total unencumbered assets by the Company, the Operating Partnership and their respective subsidiaries.

The purchase price paid by the underwriters for the Notes was 99.350% of the principal amount thereof. The Notes are the Operating Partnership’s unsecured senior obligations and rank equally in right of payment with all existing and future unsecured senior indebtedness of the Operating Partnership. However, the Notes are or will be effectively subordinated to all existing and future secured indebtedness of the Operating Partnership and the Operating Partnership’s subsidiaries to the extent of the value of the assets securing such indebtedness and are or will be structurally subordinated to all existing and future indebtedness and other liabilities, including trade payables, and preferred equity of subsidiaries of the Operating Partnership that do not guarantee the Notes (the “Non-Guarantor Subsidiaries”) (other than any indebtedness owed to the Operating Partnership or any Subsidiary Guarantor by such Non-Guarantor Subsidiaries). The Notes bear interest at 5.409% per annum. Interest is payable on March 12 and September 12 of each year, beginning March 12, 2025, until the maturity date of September 12, 2034.

Prior to June 12, 2034, the Operating Partnership may redeem the Notes, in whole or in part, at any time and from time to time, at the Operating Partnership’s option and sole discretion, at a redemption price equal to the greater of:

 

•

100% of the principal amount of the Notes being redeemed; and

 

•

a make-whole premium calculated in accordance with the Indenture,

plus, in either case, unpaid interest accrued thereon to, but excluding, the redemption date.

 

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Notwithstanding the foregoing, on or after June 12, 2034, the Operating Partnership may redeem the Notes, in whole or in part, at any time and from time to time, at a redemption price in cash equal to 100% of the principal amount of the Notes being redeemed plus unpaid interest accrued thereon to, but excluding, the redemption date.

Certain events are considered events of default, which may result in the accelerated maturity of the Notes, including:

 

•

default for 30 days in the payment of any installment of interest or any Additional Amounts (as defined in the Prospectus Supplement) under the Notes or the Guarantees, as the case may be;

 

•

default in the payment of the principal amount or redemption price due with respect to the Notes, when the same becomes due and payable;

 

•

failure by the Operating Partnership or any Guarantor to comply with any of the Operating Partnership’s or such Guarantor’s respective other agreements in the Notes, the Guarantees or the Indenture upon receipt by the Operating Partnership of written notice of such default by the Trustee or by holders of not less than 25% in principal amount of the Notes then outstanding and the Operating Partnership’s failure to cure (or obtain a waiver of) such default within 60 days after the Operating Partnership receives such notice;

 

•

failure to pay any Debt (as defined in the Prospectus Supplement) (other than Non-Recourse Debt (as defined in the Prospectus Supplement)) for monies borrowed by the Operating Partnership, the Company or any of their respective Significant Subsidiaries (as defined in the Prospectus Supplement) in an outstanding principal amount in excess of $75.0 million at final maturity or upon acceleration after the expiration of any applicable grace period, which Debt (other than Non-Recourse Debt) is, or has become, the primary obligation of the Operating Partnership or the Company or any of their respective Significant Subsidiaries and is not discharged, or such default in payment or acceleration is not cured or rescinded, within 60 days after written notice to the Operating Partnership from the Trustee or to the Operating Partnership and the Trustee from holders of not less than 25% in principal amount of the outstanding Notes;

 

•

any Guarantor’s Guarantee ceases to be in full force and effect (except as contemplated by the terms of the Indenture) or is declared null and void in a judicial proceeding or any Guarantor denies or disaffirms its obligations under the Indenture or its Guarantee, except by reason of the release of such Guarantee in accordance with the provisions of the Indenture or such Guarantee; or

 

•

certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or trustee of the Operating Partnership, any Parent Guarantor or any of their respective Significant Subsidiaries or all or substantially all of their respective properties and assets.

The descriptions of the Base Indenture, the First Supplemental Indenture, the Notes and the Guarantees in this Current Report on Form 8-K are summaries and are qualified in their entirety by the terms of the Base Indenture, the First Supplemental Indenture, the Form of Notes and the Form of Notation of Guarantee, which are attached as Exhibits 4.1, 4.2, 4.3 and 4.4, respectively, to this Current Report on Form 8-K and are incorporated by reference hereto.

 

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Item 9.01

Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit Number		Description of Exhibit
4.1		Indenture, dated as of September 12, 2024, by and among Americold Realty Operating Partnership, L.P., as issuer, Americold Realty Trust, Inc., Americold Realty Operations, Inc., Americold Australian Holdings Pty Ltd., Icecap Properties NZ Limited and Nova Cold Logistics ULC, as guarantors, and U.S. Bank Trust Company, National Association, as trustee.
4.2		First Supplemental Indenture, dated as of September 12, 2024, by and among Americold Realty Operating Partnership, L.P., as issuer, Americold Realty Trust, Inc., Americold Realty Operations, Inc., Americold Australian Holdings Pty Ltd., Icecap Properties NZ Limited and Nova Cold Logistics ULC, as guarantors, and U.S. Bank Trust Company, National Association, as trustee.
4.3		Form of 5.409% Notes due 2034 (included in Exhibit 4.2).
4.4		Form of Notation of Guarantee (included in Exhibit 4.1).
5.1		Opinion of Alston & Bird LLP.
5.2		Opinion of Venable LLP with respect to Americold Realty Trust, Inc.
5.3		Opinion of K&L Gates LLP with respect to Americold Australian Holdings Pty Ltd.
5.4		Opinion of Ellis Gould with respect to Icecap Properties NZ Limited.
5.5		Opinion of Stewart McKelvey with respect to Nova Cold Logistics ULC.
8.1		Tax Opinion of Alston & Bird LLP.
23.1		Consent of Alston and Bird LLP (included in the opinion filed as Exhibit 5.1).
23.2		Consent of Venable LLP (included in the opinion filed as Exhibit 5.2).
23.3		Consent of K&L Gates LLP (included in the opinion filed as Exhibit 5.3).
23.4		Consent of Ellis Gould (included in the opinion filed as Exhibit 5.4).
23.5		Consent of Stewart McKelvey (included in the opinion filed as Exhibit 5.5).
23.6		Consent of Alston & Bird LLP (included in the opinion filed as Exhibit 8.1).
104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this Report to be signed on its behalf by the undersigned hereunto duly authorized.

 

AMERICOLD REALTY TRUST, INC.
By:		/s/ E. Jay Wells
		E. Jay Wells
		Chief Financial Officer and Executive Vice President

Date: September 12, 2024

Exhibit 4.1

AMERICOLD REALTY OPERATING PARTNERSHIP, L.P., as Issuer

AMERICOLD REALTY TRUST, INC., as a Parent Guarantor,

AMERICOLD REALTY OPERATIONS, INC., as a Parent Guarantor,

any other Guarantors party hereto,

and

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee

INDENTURE

Dated as of September 12, 2024

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TABLE OF CONTENTS

 

						Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION							1
		Section 101.		DEFINITIONS			1
		Section 102.		COMPLIANCE CERTIFICATES AND OPINIONS			9
		Section 103.		FORM OF DOCUMENTS DELIVERED TO TRUSTEE			9
		Section 104.		ACTS OF HOLDERS			9
		Section 105.		NOTICES, ETC., TO TRUSTEE AND ISSUER			10
		Section 106.		NOTICE TO HOLDERS; WAIVER			11
		Section 107.		COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS			11
		Section 108.		SUCCESSORS AND ASSIGNS			11
		Section 109.		SEVERABILITY CLAUSE			11
		Section 110.		BENEFITS OF INDENTURE			11
		Section 111.		GOVERNING LAW			11
		Section 112.		SUBMISSION TO JURISDICTION			11
		Section 113.		LEGAL HOLIDAYS			12
		Section 114.		IMMUNITY OF STOCKHOLDERS, DIRECTORS, OFFICERS AND AGENTS OF THE ISSUER, THE GENERAL PARTNER, AND ANY GUARANTOR			12
		Section 115.		CONFLICT WITH TRUST INDENTURE ACT			12
		Section 116.		COMMUNICATION BY HOLDERS WITH OTHER HOLDERS			13
		Section 117.		PATRIOT ACT			13
ARTICLE II SECURITIES FORMS							13
		Section 201.		FORMS OF SECURITIES			13
		Section 202.		FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION			13
		Section 203.		SECURITIES ISSUABLE IN GLOBAL FORM			13
ARTICLE III THE SECURITIES							14
		Section 301.		AMOUNT UNLIMITED; ISSUABLE IN SERIES			14
		Section 302.		DENOMINATIONS			16
		Section 303.		EXECUTION, AUTHENTICATION, DELIVERY AND DATING			16
		Section 304.		TEMPORARY SECURITIES			18
		Section 305.		REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE			19
		Section 306.		MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES			20
		Section 307.		PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED			21
		Section 308.		PERSONS DEEMED OWNERS			22
		Section 309.		CANCELLATION			22
		Section 310.		COMPUTATION OF INTEREST			22
		Section 311.		PAYING AGENT TO HOLD MONEY IN TRUST			22
ARTICLE IV SATISFACTION AND DISCHARGE; DEFEASANCE							23
		Section 401.		SATISFACTION AND DISCHARGE			23
		Section 402.		DEFEASANCE AND COVENANT DEFEASANCE			24
		Section 403.		APPLICATION OF TRUST MONEY			26
		Section 404.		RETURN OF UNCLAIMED MONIES			26
		Section 405.		REINSTATEMENT			26
ARTICLE V REMEDIES							26
		Section 501.		EVENTS OF DEFAULT			26
		Section 502.		PAYMENTS OF SECURITIES ON DEFAULT; SUIT THEREFOR			28
		Section 503.		APPLICATION OF MONIES COLLECTED BY TRUSTEE			29
		Section 504.		PROCEEDINGS BY HOLDERS OF SECURITIES			29
		Section 505.		PROCEEDINGS BY TRUSTEE			30
		Section 506.		REMEDIES CUMULATIVE AND CONTINUING			30

 

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		Section 507.		DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF HOLDERS OF SECURITIES			30
		Section 508.		UNDERTAKING TO PAY COSTS			31
ARTICLE VI THE TRUSTEE							31
		Section 601.		NOTICE OF DEFAULTS			31
		Section 602.		CERTAIN RIGHTS OF TRUSTEE			31
		Section 603.		NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES			32
		Section 604.		MAY HOLD SECURITIES AND COMMON STOCK			33
		Section 605.		MONEY HELD IN TRUST			33
		Section 606.		COMPENSATION AND REIMBURSEMENT			33
		Section 607.		CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS			33
		Section 608.		RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR			34
		Section 609.		ACCEPTANCE OF APPOINTMENT BY SUCCESSOR			35
		Section 610.		MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS			35
		Section 611.		APPOINTMENT OF AUTHENTICATING AGENT			35
		Section 612.		CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE			36
ARTICLE VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY							37
		Section 701.		DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS			37
		Section 702.		REPORTS BY TRUSTEE			37
		Section 703.		REPORTS BY ISSUER			38
		Section 704.		ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS			38
ARTICLE VIII CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE							38
		Section 801.		ISSUER AND PARENT GUARANTORS MAY CONSOLIDATE ON CERTAIN TERMS			38
		Section 802.		ISSUER OR PARENT GUARANTOR SUCCESSOR TO BE SUBSTITUTED			39
		Section 803.		SUBSIDIARY GUARANTORS AND FUTURE GUARANTORS MAY CONSOLIDATE ON CERTAIN TERMS			39
		Section 804.		SUBSIDIARY GUARANTOR SUCCESSOR TO BE SUBSTITUTED			40
		Section 805.		EXCEPTIONS TO RESTRICTIONS			40
ARTICLE IX SUPPLEMENTAL INDENTURES							40
		Section 901.		SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS OF SECURITIES			40
		Section 902.		SUPPLEMENTAL INDENTURE WITH CONSENT OF HOLDERS OF SECURITIES			41
		Section 903.		EFFECT OF SUPPLEMENTAL INDENTURE			42
		Section 904.		NOTATION ON SECURITIES			42
		Section 905.		EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED TO TRUSTEE			42
ARTICLE X COVENANTS							42
		Section 1001.		PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST			42
		Section 1002.		MAINTENANCE OF OFFICE OR AGENCY			42
		Section 1003.		MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST			43
		Section 1004.		EXISTENCE			44
		Section 1005.		MAINTENANCE OF PROPERTIES			44
		Section 1006.		INSURANCE			44
		Section 1007.		PAYMENT OF TAXES AND OTHER CLAIMS			44
		Section 1008.		APPOINTMENTS TO FILL VACANCIES IN TRUSTEE’S OFFICE			45
		Section 1009.		STATEMENT AS TO COMPLIANCE			45
		Section 1010.		ADDITIONAL AMOUNTS			45
		Section 1011.		WAIVER OF CERTAIN COVENANTS			46
		Section 1012.		WAIVER OF USURY, STAY OR EXTENSION LAWS			46
		Section 1013.		FUTURE GUARANTORS			46
		Section 1014.		PROVISION OF FINANCIAL INFORMATION			46

 

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ARTICLE XI REDEMPTION OF SECURITIES							47
		Section 1101.		APPLICABILITY OF ARTICLE			47
		Section 1102.		ELECTION TO REDEEM; NOTICE TO TRUSTEE			47
		Section 1103.		SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED			47
		Section 1104.		NOTICE OF REDEMPTION			47
		Section 1105.		DEPOSIT OF REDEMPTION PRICE			48
		Section 1106.		SECURITIES PAYABLE ON REDEMPTION DATE			48
		Section 1107.		SECURITIES REDEEMED IN PART			48
ARTICLE XII SINKING FUNDS							49
		Section 1201.		APPLICABILITY OF ARTICLE			49
		Section 1202.		SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES			49
		Section 1203.		REDEMPTION OF SECURITIES FOR SINKING FUND			49
ARTICLE XIII REPAYMENT AT THE OPTION OF HOLDERS							49
		Section 1301.		APPLICABILITY OF ARTICLE			49
		Section 1302.		REPAYMENT OF SECURITIES			49
		Section 1303.		EXERCISE OF OPTION			50
		Section 1304.		WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND PAYABLE			50
		Section 1305.		SECURITIES REPAID IN PART			50
ARTICLE XIV MEETINGS OF HOLDERS OF SECURITIES							50
		Section 1401.		PURPOSE FOR WHICH MEETINGS MAY BE CALLED			50
		Section 1402.		CALL, NOTICE AND PLACE OF MEETINGS			50
		Section 1403.		PERSONS ENTITLED TO VOTE AT MEETINGS			51
		Section 1404.		QUORUM; ACTION			51
		Section 1405.		DETERMINATION OF VOTING RIGHTS, CONDUCT AND ADJOURNMENT OF MEETINGS			52
		Section 1406.		COUNTING VOTES AND RECORDING ACTION OF MEETINGS			52
ARTICLE XV THE GUARANTEES							52
		Section 1501.		GUARANTEE			52
		Section 1502.		EXECUTION AND DELIVERY OF NOTATION OF GUARANTEE			53
		Section 1503.		LIMITATION OF GUARANTOR’S LIABILITY, CERTAIN BANKRUPTCY EVENTS			54
		Section 1504.		APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTORS			54
		Section 1505.		RELEASE OF GUARANTEE			54

EXHIBITS

 

EXHIBIT A –		FORM OF NOTATION OF GUARANTEE
EXHIBIT B –		FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM S.A. IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE

 

 

iii

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Reconciliation and tie between Trust Indenture Act of 1939 and

Indenture, dated as of September 12, 2024

 

Trust Indenture Act Section		Indenture Section
Section 310(a)(1)		SECTION 607
(a)(2)		SECTION 607
(a)(3)		Not Applicable
(a)(4)		Not Applicable
(a)(5)		SECTION 607
(b)		SECTION 607; SECTION 608
Section 311		SECTION 607
Section 312(a)		SECTION 704
(b)		SECTION 116
(c)		SECTION 701
Section 313(a)		SECTION 702
(b)		Not Applicable
(c)		SECTION 702
(d)		SECTION 702
Section 314(a)(1)-(3)		SECTION 702
(a)(4)		SECTION 1009
(b)		Not Applicable
(c)(1)		SECTION 102
(c)(2)		SECTION 102
(c)(3)		Not Applicable
(d)		Not Applicable
(e)		SECTION 102
(f)		Not Applicable
Section 315(a)		SECTION 612 (1)
(b)		SECTION 601
(c)		SECTION 612 (2)
(d)		SECTION 612
(e)		SECTION 508
Section 316(a)(last sentence)		SECTION 101 (“Outstanding”)
(a)(1)		SECTION 507
(a)(2)		Not Applicable
(b)		SECTION 902
(c)		SECTION 104
Section 317(a)		SECTION 502
(b)		SECTION 311
Section 318(a)		SECTION 115
(b)		Not Applicable
(c)		SECTION 115

Note: This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture.

 

iv

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INDENTURE (the “Indenture”), dated as of September 12, 2024 by and among AMERICOLD REALTY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the “Issuer”), AMERICOLD REALTY TRUST, INC., a Maryland corporation, the Issuer’s sole general partner (the “General Partner,” and in the capacity as guarantor of one or more series of the Securities to be issued hereunder from time to time a “Parent Guarantor”), AMERICOLD REALTY OPERATIONS, INC., a Delaware corporation, and a limited partner of the Issuer (the “Limited Partner,” and in the capacity as guarantor of one or more series of the Securities to be issued hereunder from time to time a “Parent Guarantor” and, with the General Partner, the “Parent Guarantors”), each having its principal office at 10 Glenlake Parkway, South Tower, Suite 600, Atlanta, Georgia 30328, the Subsidiary Guarantors (as defined herein) party hereto, each with an address at c/o Americold Realty Trust, Inc., 10 Glenlake Parkway, South Tower, Suite 600, Atlanta, Georgia 30328, and U.S. Bank Trust Company, National Association, as Trustee hereunder (the “Trustee”), having its Corporate Trust Office at 2 Concourse Parkway, Suite 800, Atlanta, Georgia 30328.

RECITALS

The Issuer may deem it appropriate to issue from time to time for its lawful purposes debt securities (hereinafter called the “Securities”) evidencing its indebtedness and has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Securities, to be issued in one or more series as provided in this Indenture.

The General Partner, in its capacity as the sole general partner of the Issuer and as a Parent Guarantor from time to time of Securities issued, and the Limited Partner, in its capacity as a limited partner of the Issuer and as a Parent Guarantor from time to time of Securities issued, each have duly authorized the execution and delivery of this Indenture by the Issuer and for itself, and its Guarantee of the Securities pursuant to the provisions of this Indenture.

Each other Guarantor (other than the Parent Guarantors), in its capacity as a Guarantor from time to time of Securities issued, has duly authorized the execution and delivery of this Indenture by itself, and its Guarantee of the Securities pursuant to the provisions of this Indenture.

This Indenture is subject to the provisions of the Trust Indenture Act that are deemed to be incorporated into this Indenture and shall, to the extent applicable, be governed by such provisions.

All things necessary to make this Indenture a valid agreement of the Issuer and the Guarantors, in accordance with its terms, have been done.

NOW, THEREFORE, THIS INDENTURE WITNESSETH:

For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all Holders of the Securities, as follows:

ARTICLE I

DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION

 

Section 101.

DEFINITIONS.

For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:

(1) the terms defined in this Article 1 have the meanings assigned to them in this Article 1, and include the plural as well as the singular;

(2) all other terms used herein which are defined in the TIA, either directly or by reference therein, have the meanings assigned to them therein;

(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;

(4) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;

(5) any reference to an “Article,” a “Section” or a “Subsection” refers to an Article, Section or Subsection, as the case may be, of this Indenture; and

 

1

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(6) the word “or” is always used inclusively.

“Act,” when used with respect to any Holder, has the meaning specified in Section 104.

“Additional Amounts” means any additional amounts which are required by a Security or by or pursuant to a Board Resolution, under circumstances specified therein, to be paid by the Issuer or the Guarantors in respect of certain taxes and other governmental charges imposed on certain Holders and which are owing to such Holders.

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person means the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“Authenticating Agent” means the Trustee or any authenticating agent appointed by the Trustee pursuant to Section 611 to act on behalf of the Trustee to authenticate Securities.

“Bankruptcy Law” means Title 11 of the U.S. Code or any similar federal or state law for the relief of debtors.

“Benefited Party” has the meaning specified in Section 1501.

“Board of Directors” means with respect to:

(a) any Person that is a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such board of directors;

(b) any Person that is a partnership, the Board of Directors of the general partner of the partnership;

(c) any Person that is a real estate investment trust, the board of trustees thereof;

(d) any Person that is a limited liability company, the managing member or members thereof (if a natural person or natural persons) or, if such managing member or members are not natural persons, the Board of Directors or other controlling committee, as the case may be, of the managing member or members of such limited liability company duly authorized to act on behalf of such managing member or members; and

(e) any other Person, the board or committee of such Person serving a similar function.

“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the Secretary or an Assistant Secretary of such Person, or if such Person is a partnership, the general partner of such Person, to have been duly adopted by the Board of Directors of such Person and to be in full force and effect on the date of such certification, and delivered to the Trustee.

“Business Day” means, unless otherwise specified with respect to any Securities pursuant to Section 301, any day, other than a Saturday, a Sunday or other day on which banking institutions in The City of New York are authorized or required by law, regulation or executive order to remain closed or, when used with respect to a Place of Payment (other than The City of New York) or any other particular location referred to in this Indenture or in the Securities (other than The City of New York), any day, other than a Saturday, a Sunday or other day on which banking institutions in that Place of Payment or particular location are authorized or required by law, regulation or executive order to remained closed.

“Capital Stock” means any and all shares (including shares of beneficial interest), interests, participations, rights or other equivalents (however designated) of corporate stock and, with respect to partnerships, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership.

“Clearstream” means Clearstream Banking, S.A., or its successor.

“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Securities Act, the Exchange Act or the Trust Indenture Act, as the case may be, then the body or respective bodies performing such duties on such date.

 

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“Common Depositary” shall have the meaning specified in Section 304.

“Common Stock” means the common stock, $0.01 par value per share, of the General Partner as they exist on the date of this Indenture or any other shares of Capital Stock of the General Partner into which the Common Stock shall be reclassified or changed or, in the event of a merger, consolidation or other similar transaction involving the General Partner that is otherwise permitted hereunder in which the General Partner is not the surviving Person, the common stock, common equity interests, ordinary shares or depositary shares or other certificates representing common equity interests of such surviving Person or its direct or indirect parent.

“Confidential Datasite” has the meaning provided in Section 1014.

“Corporate Trust Office” or other similar term means the designated office of the Trustee at which, at any particular time, its corporate trust business as it relates to this Indenture shall be administered, which office is, at the date as of which this Indenture is dated, located at 2 Concourse Parkway, Suite 800, Atlanta, Georgia 30328, or at any other time at such other address as the Trustee may designate from time to time by notice to the Issuer.

“covenant defeasance” has the meaning specified in Section 402(3).

“Currency,” with respect to any payment, deposit or other transfer in respect of the principal of or any premium or Interest on or any Additional Amounts with respect to any Security, means Dollars or the Foreign Currency, as the case may be, in which such payment, deposit or other transfer is required to be made by or pursuant to the terms hereof or such Security and, with respect to any other payment, deposit or transfer pursuant to or contemplated by the terms hereof or such Security, means Dollars.

“CUSIP” means the Committee on Uniform Securities Identification Procedures.

“Debt” means, with respect to any Person, any:

(a) indebtedness of such Person in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments;

(b) indebtedness secured by any Lien on any property or asset owned by such Person, but only to the extent of the lesser of (i) the amount of indebtedness so secured and (ii) the fair market value (determined in good faith by the Issuer) of the property subject to such Lien;

(c) reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued or amounts representing the balance deferred and unpaid of the purchase price of any property except any such balance that constitutes an accrued expense or trade payable; or

(d) any lease of property by such Person as lessee which is required to be reflected on such Person’s balance sheet as a finance lease in accordance with GAAP;

in the case of items of indebtedness under the clauses (a) and (c) above to the extent that any such items (other than letters of credit) would appear as liabilities on such Person’s balance sheet in accordance with GAAP; provided, however, that the term “Debt” will: (1) include, to the extent not otherwise included, any non-contingent obligation of such Person 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 the types referred to above of another Person (other than the General Partner, the Issuer or any of their respective Subsidiaries); provided, however, that the term “Debt” shall not include Permitted Non-Recourse Guarantees of the General Partner, the Issuer or any of their respective Subsidiaries until they become primary obligations of, and payments are due and required to be made thereunder by, the General Partner, the Issuer or any of their respective Subsidiaries; (2) exclude any such indebtedness (or obligations referenced in clause (1) above) that has been the subject of an “in substance” defeasance in accordance with GAAP; and (3) exclude Intercompany Indebtedness that is subordinate in right of payment to a series of Securities (or an obligation to be liable for, or to pay, Intercompany Indebtedness that is subordinate in right of payment to a series of Securities). In the case of indebtedness under clause (d) above, the term “Debt” will exclude operating lease liabilities on such Person’s balance sheet in accordance with GAAP.

“default” means any event that is, or after notice or lapse of time or both would become, an Event of Default.

 

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“Defaulted Interest” has the meaning specified in Section 307.

“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal tender for the payment of public and private debts.

“Domestic Subsidiary” means any Subsidiary that is incorporated or organized under the laws of the United States or any state thereof or the District of Columbia.

“DTC” has the meaning specified in Section 304.

“EDGAR” has the meaning specified in Section 703.

“Euroclear” means Euroclear Bank SA/NV, as operator of the Euroclear system (or any successor clearing agency).

“Event of Default” has the meaning specified in Section 501.

“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time, or any successor thereto.

“Exchange Date” shall have the meaning specified in Section 304.

“Foreign Currency” means any currency, currency unit or composite currency, including, without limitation, the euro, issued by the government of one or more countries other than the United States of America or by any recognized confederation or association of such governments.

“Foreign Subsidiary” means any Subsidiary of the Issuer that is not a Domestic Subsidiary.

“Future Guarantor” means, following the original issue date of any series of Securities, each direct and indirect Subsidiary of the General Partner (other than the Issuer, the Limited Partner and the Subsidiary Guarantors), if such Subsidiary, directly or indirectly, becomes a co-borrower, guarantor or other obligor under the Primary Credit Facility, and, accordingly, is required to guarantee the Issuer’s obligations under any series of Securities pursuant to, and in accordance with, Section 1013.

“GAAP” means United States generally accepted accounting principles.

“General Partner” means the Person named as the “General Partner” in the first paragraph of this Indenture, and, subject to the provisions of Article 8, shall include its successors and assigns.

“Global Security” means a security evidencing all or a part of a series of Securities issued to and registered in the name of the depositary for such series, or its nominee, in accordance with Section 305, and bearing the legend prescribed in Section 203.

“Governmental Authority” means the government of the United States or any other nation, or of any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank), any securities exchange and any self-regulatory organization.

“Government Obligations” means securities which are direct obligations of, or guaranteed by, the United States of America or the other government or governments in the confederation which issued the Foreign Currency in which the principal of or any premium or Interest on the relevant Security or any Additional Amounts in respect thereof shall be payable, in each case for the payment of which its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Government Obligation evidenced by such depositary receipt.

 

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“Guarantee” and “Guarantees” mean the full and unconditional guarantee provided by the Guarantors in respect of the Securities as made applicable to the Securities in accordance with the provisions of Article 3 and Article 15 hereof and evidenced by the Notation of Guarantee affixed to each Security of a series.

“Guarantee Obligations” has the meaning specified in Section 1501.

“Guarantor” means, collectively, the Parent Guarantors, each Subsidiary Guarantor, and each other Person who may execute this Indenture, the Notation of Guarantee affixed to each Security of a series or any supplement hereto for the purpose of providing a Guarantee of Securities of such series pursuant to this Indenture, including any Future Guarantor; provided that any such Guarantor shall cease to be a Guarantor with respect to such series of Securities if its Guarantee is released in accordance with this Indenture or the terms of such series of Securities, which, in each case, subject to the provisions of Article 8, shall include their respective successors and assigns.

“Holder” means the Person in whose name a Security is registered in the Security Register.

“Indenture” means this instrument as originally executed and as it may be supplemented or amended from time to time by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated by Section 301; provided, however, that, if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may be supplemented or amended from time to time by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of the, or those, particular series of Securities for which such Person is Trustee established as contemplated by Section 301, exclusive, however, of any provisions or terms which relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.

“Intercompany Indebtedness” means Debt to which the only parties are any of the Issuer, the General Partner or any of their respective Subsidiaries.

“Interest,” when used with respect to an Original Issue Discount Security which by its terms bears interest only after the Maturity Date, means interest payable after the Maturity Date, and, when used with respect to a Security which provides for the payment of interest or the payment of Additional Amounts pursuant to Section 1010, includes such interest or Additional Amounts, as applicable.

“Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.

“Issuer” means the Person named as the “Issuer” in the first paragraph of this Indenture until a successor entity shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Issuer” shall mean such successor entity.

“Issuer Request” and “Issuer Order” mean, respectively, a written request or order signed by, as applicable, (a) in the case of the Issuer, the General Partner’s Chief Executive Officer, President, Chief Financial Officer or any Executive Vice President, Senior Vice President or Vice President and by the General Partner’s Treasurer, an Assistant Treasurer, the General Partner’s Secretary or an Assistant Secretary, (b) in the case of any Guarantor, such Guarantor’s Chief Executive Officer, President, Chief Financial Officer or any Executive Vice President, Senior Vice President or Vice President and by such Guarantor’s Treasurer, an Assistant Treasurer, such Guarantor’s Secretary or an Assistant Secretary, and delivered to the Trustee.

“legal defeasance” has the meaning specified in Section 402(2).

“Lien” means any mortgage, deed of trust, lien, charge, pledge, security interest, security agreement or encumbrance, other than a Permitted Lien.

“Maturity Date,” when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by acceleration, notice of redemption, notice of option to elect repayment or otherwise.

“Non-Recourse Debt” means Debt of a joint venture or Subsidiary of the Issuer (or an entity in which the Issuer is the general partner or managing member) that is directly or indirectly secured by real estate assets or other real estate-related assets (including equity interests) of the joint venture or Subsidiary of the Issuer (or entity in which the Issuer is the general partner or managing

 

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member) that is the borrower and is non-recourse to the General Partner 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 Issuer (or entity in which the Issuer is the general partner or managing member) that is the borrower); provided further that, if any such Debt is partially recourse to the General Partner 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 Issuer (or entity in which the Issuer 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.”

“Notation of Guarantee” means a notation, substantially in the form of Exhibit A, executed by a Guarantor and affixed to each Security of any series to which the Guarantee of such Guarantor under Article XV of this Indenture applies.

“Officer” and “officer” mean the Chief Executive Officer, the President, the Chief Financial Officer, an Executive Vice President, a Senior Vice President or a Vice President, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the General Partner (when such term is used with respect to any action to be taken by, any document to be executed by or any matter relating to the General Partner in its capacity as general partner of the Issuer) or of any Guarantor (when such term is used with respect to any action to be taken by, any document to be executed by or any matter relating to such Guarantor).

“Officers’ Certificate” means a certificate signed by the Chief Executive Officer, the President, the Chief Financial Officer, an Executive Vice President, a Senior Vice President, or a Vice President and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the General Partner (when used with respect to the Issuer) or of any Guarantor (when used with respect to such Guarantor), and in each case delivered to the Trustee.

“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Issuer or who may be an employee of or other counsel for the Issuer and who shall be satisfactory to the Trustee and delivered to the Trustee.

“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon acceleration prior to the Maturity Date thereof pursuant to Section 502.

“Outstanding” when used with respect to the Securities, means, as of the date of determination, all the Securities theretofore authenticated and delivered under this Indenture, except:

(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;

(2) Securities, or portions thereof, for whose payment or redemption (including repayment at the option of the Holder) money in the necessary amount has been theretofore been deposited with the Trustee or any Paying Agent (other than the Issuer) in trust or set aside and segregated in trust by the Issuer (if the Issuer shall act as its own Paying Agent) for the Holders of such Securities; provided, however, that, if such Securities are to be redeemed, notice of such redemption has been duly and irrevocably given pursuant to this Indenture or provision therefor satisfactory to the Trustee;

(3) Securities, except to the extent provided in Section 402, with respect to which the Issuer has effected legal defeasance and/or covenant defeasance as provided in Article 4; and

(4) Securities which have been paid pursuant to Section 306 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Issuer;

provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculation required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination, upon acceleration of the maturity thereof pursuant to Section 502, (ii) the principal amount of any Security denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined pursuant to Section 301 as of the date such Security is originally issued by the Issuer, of the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (i) above) of such Security, and (iii) Securities owned by the Issuer, the General Partner, any Guarantor or any other obligor upon the Securities or any Affiliate of the Issuer, the General

 

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Partner, any Guarantor or such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities owned as provided in clause (iii) above which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Issuer, the General Partner, any Guarantor or any other obligor upon the Securities or any Affiliate of the Issuer, the General Partner, any Guarantor or such other obligor.

“Patriot Act” has the meaning specified in Section 117.

“Paying Agent” has the meaning specified in Section 104.

“Permitted Lien” means an operating lease, Lien securing taxes, assessments and similar charges, mechanics’ lien and other similar Liens and any Lien that secures Debt of the General Partner or any of its Subsidiaries owed to the Issuer or any Guarantor.

“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 General Partner 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 equity interests) of a joint venture or Subsidiary of the Issuer (or an entity in which the Issuer is the general partner or managing member), in each case that is the borrower in such financing, but is non-recourse to the General Partner 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 an individual, a corporation, a partnership, a limited liability company, an association, a joint-stock company, a trust or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Place of Payment,” when used with respect to the Securities of or within any series, means the place or places where the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities are payable as specified as contemplated by Sections 301 and 1002.

“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.

“Primary Credit Facility” means the Credit Agreement, dated as of August 23, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time prior to the date of the issuance of a particular series of Securities) among the Issuer, the General Partner, certain subsidiaries of the General Partner and the Issuer, Bank of America, N.A. (or successors), as administrative agent, and the other lenders party thereto, including any renewals, extensions, amendments, restatements, replacements or refinancing in full (or a majority of the outstanding commitments) thereof after the date of the issuance of such series of Securities.

“Redemption Date” means, with respect to any Security or portion thereof to be redeemed in accordance with the provisions of Article 11, the date fixed for such redemption in accordance with the provisions of Article 11.

“Redemption Price” has the meaning provided in Section 1106.

“Registered Security” shall mean any Security which is registered in the Security Register.

“Regular Record Date” for the interest payable on any Interest Payment Date on the Registered Securities of or within any series means the date specified for that purpose as contemplated by Section 301, whether or not a Business Day.

“Related Proceedings” has the meaning provided in Section 112.

 

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“Repayment Date” means, when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment by or pursuant to this Indenture.

“Responsible Officer” means, when used with respect to the Trustee, any officer in the Corporate Trust Office of the Trustee with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of such other officer’s knowledge of and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture.

“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, as in effect from time to time, and any successor thereto.

“Security” has the meaning stated in the first recital of this Indenture and, more particularly, means any Security or Securities authenticated and delivered under this Indenture; provided, however, that, if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.

“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.

“Significant Subsidiary” means a “significant subsidiary” as defined in Rule 1-02(w) of Regulation S-X under the Securities Act.

“Special Record Date” for the payment of any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Issuer pursuant to Section 307.

“Specified Courts” has the meaning provided in Section 112.

“Stated Maturity,” when used with respect to any Security or any installment of principal thereof or Interest thereon, means the date specified in such Security or this Indenture as the fixed date on which the principal of such Security or such installment of principal or Interest is due and payable.

“Subsidiary” means, with respect to the Issuer or the General Partner, any Person (but excluding an individual), a majority of the outstanding voting stock, partnership interests, membership interests or other equity interests, as the case may be, of which is owned or controlled, directly or indirectly, by the Issuer or the General Partner, as the case may be, or by one or more other Subsidiaries of the Issuer or the General Partner, as the case may be. For the purposes of this definition, “voting stock, partnership interests, membership interests or other equity interests” means stock or interests having voting power for the election of directors, trustees or managers, as the case may be, whether at all times or only so long as no senior class of stock or interests has such voting power by reason of any contingency.

“Subsidiary Guarantor” means each Person party to this Indenture as a Subsidiary Guarantor.

“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, assessments, fees, withholdings (including backup withholding) or other governmental charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as amended, as in effect from time to time, and any successor thereto.

“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any particular series shall mean only the Trustee with respect to Securities of that series.

“United States” means, unless otherwise specified with respect to any Securities pursuant to Section 301, the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.

 

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“United States Person” means, unless otherwise specified with respect to any Securities pursuant to Section 301, an individual who is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States, an estate the income of which is subject to United States federal income taxation regardless of its source or a trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States fiduciaries have the authority to control all substantial decisions of the trust.

“Yield to Maturity” means, with respect to any Original Issue Discount Security, the yield to maturity, computed at the time of issuance of such Security (or, if applicable, at the most recent redetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.

 

Section 102.

COMPLIANCE CERTIFICATES AND OPINIONS.

Upon any application or request by the Issuer to the Trustee to take any action under any provision of this Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any provision of this Indenture relating to such particular application or request no additional certificate or opinion need be furnished.

Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (including certificates delivered pursuant to Section 1009) shall include:

(1) a statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein relating thereto;

(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;

(3) a statement that, in the opinion of each such individual, such individual has made such examination or investigation as is necessary to enable such individual to express an informed opinion as to whether or not such condition or covenant has been complied with; and

(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.

 

Section 103.

FORM OF DOCUMENTS DELIVERED TO TRUSTEE.

In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion as to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.

Any certificate or opinion of an Officer may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a certificate or representations by counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such Opinion of Counsel or certificate or representations may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers stating that the information as to such factual matters is in the possession of the Issuer and, as applicable, any Guarantor, unless such counsel knows that the certificate, opinion or representations as to such matters are erroneous.

Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.

 

Section 104.

ACTS OF HOLDERS.

Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Issuer. Such instrument or instruments and

 

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any such record (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Issuer and any agent of the Trustee or the Issuer, if made in the manner provided in this Section 104. The record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1406.

The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner which the Trustee deems sufficient.

The ownership of Registered Securities shall be proved by the Security Register. As to any matter relating to beneficial ownership interests in any Global Security, the records of the appropriate depositary and of participants in such depositary shall be dispositive for purposes of this Indenture.

If the Issuer shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Issuer may, at its option, in or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Issuer shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided, however, that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.

Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, any Security Registrar, any agent to whom Securities may be presented for payment (the “Paying Agent”), any Authenticating Agent, the Issuer or any Guarantor in reliance thereon, whether or not notation of such action is made upon such Security.

 

Section 105.

NOTICES, ETC., TO TRUSTEE AND ISSUER.

Any request, demand, authorization, direction, notice, consent, waiver or other Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,

(1) the Trustee by any Holder or by the Issuer shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office; or

(2) the Issuer or any Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to the Issuer or any Guarantor, as the case may be, addressed to it at the address specified in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by the Issuer or any Guarantor, Attention: Chief Financial Officer; or

(3) the Trustee, the Issuer or any Guarantor, by the other party shall be sufficient for every purpose hereunder if given by facsimile transmission, receipt confirmed by telephone, followed by an original copy delivered by guaranteed overnight courier; if to the Trustee at facsimile number [phone]; and if to the Issuer or any Guarantor at facsimile number [phone].

 

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Section 106.

NOTICE TO HOLDERS; WAIVER.

Where this Indenture provides for notice of any event to Holders of Securities by the Issuer or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register, not later than the latest date, and not earlier than the earliest date, if any, prescribed for the giving of such notice. In any case where notice to Holders of Securities is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Securities. Any notice mailed to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such notice.

If by reason of the suspension of or irregularities in regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification to Holders of Registered Securities as shall be made with the approval of the Trustee shall constitute a sufficient notification to such Holders for every purpose hereunder.

Any request, demand, authorization, direction, notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.

Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.

Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption or repurchase) to a Holder (whether by mail or otherwise), during any period when a Global Security has been issued hereunder evidencing all or a part of any series of Securities such notice shall be sufficiently given if given to the depositary or its designee, including by electronic mail in accordance with accepted practices or procedures at the depositary.

 

Section 107.

COUNTERPARTS; EFFECT OF HEADINGS AND TABLE OF CONTENTS.

This Indenture may be executed in any number of counterparts, each of which when executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.

 

Section 108.

SUCCESSORS AND ASSIGNS.

All covenants and agreements in this Indenture by the Issuer and the Guarantors shall bind their respective permitted successors and assigns, whether so expressed or not.

 

Section 109.

SEVERABILITY CLAUSE.

In case any provision in this Indenture or in any Security or Guarantee shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

 

Section 110.

BENEFITS OF INDENTURE.

Nothing in this Indenture or in the Securities, and as applicable in any Guarantees, express or implied, shall give to any Person, other than the parties hereto, any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder and the Holders any benefit or any legal or equitable right, remedy or claim under this Indenture.

 

Section 111.

GOVERNING LAW.

This Indenture and the Securities, and any Guarantees, shall be governed by, and construed in accordance with, the law of the State of New York.

 

Section 112.

SUBMISSION TO JURISDICTION.

The Issuer and each Guarantor irrevocably and unconditionally agrees that any legal suit, action or proceeding arising out of, or based upon, or relating to, the performance of its obligations under this Indenture or a series of Securities (“Related Proceedings”) shall be instituted in the federal courts of the United States of America or the courts of the State of New York, in each case located in

 

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the Borough of Manhattan, The City of New York (collectively, the “Specified Courts”), irrevocably and unconditionally waives any objection which it may have now or hereafter to the laying of the venue of any Related Proceeding in the Specified Courts, irrevocably and unconditionally waives and agrees not to plead or claim in any Specified Court that any Related Proceeding brought in any Specified Court had been brought in an inconvenient forum, and irrevocably and unconditionally submits to the exclusive jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any Specified Court, as to which such jurisdiction is non-exclusive) of the Specified Courts in any Related Proceeding. The Issuer and each Guarantor hereby appoints the General Partner as their respective authorized agent to accept and acknowledge on their behalf service of any and all process which may be served in any Related Proceeding that may be instituted in any Specified Court and agrees that service of process upon said agent at its office at the address specified in the first paragraph of this Indenture (or at such other address specified in a written notice to the Issuer, each Guarantor and the Trustee), and written notice of said service to the Issuer or any Guarantor mailed or delivered to it, at such address, shall be deemed in every respect effective service of process upon the Issuer and each Guarantor in any Related Proceeding and shall be taken and held to be valid personal service upon the Issuer and any Guarantor, whether or not the Issuer or such Guarantor shall then be doing, or at any time shall have done, business within the State of New York, and that any such service of process shall be of the same force and validity as if service were made upon it according to the laws governing the validity and requirements of such service in such state, and waive all claim of error by reason of any such service. Said designation and appointment shall be irrevocable until this Indenture shall have been satisfied and discharged in accordance with Section 401.

To the extent that the Issuer or any Guarantor has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service of notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Issuer and each Guarantor irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any and all such immunity in respect of its obligations under the Indenture or a series of Securities.

 

Section 113.

LEGAL HOLIDAYS.

In any case where any Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity Date of any Security or the last date on which a Holder has the right to exchange a Security shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or any Security or Guarantee, other than a provision in the Securities of any particular series which specifically states that such provision shall apply in lieu hereof), payment of principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) or exchange of such Security need not be made at such Place of Payment on such date, but (except as otherwise provided with respect to such Security) may be made on the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or at the Stated Maturity or Maturity Date, or on such last day of exchange, provided that (except as otherwise provided with respect to such Security) no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity Date, as the case may be, to the next succeeding Business Day.

 

Section 114.

IMMUNITY OF STOCKHOLDERS, DIRECTORS, OFFICERS AND AGENTS OF THE ISSUER, THE GENERAL PARTNER, AND ANY GUARANTOR.

Except as otherwise expressly provided in Article 15, no recourse under or upon any obligation, covenant or agreement contained in this Indenture or in any Security or Guarantee, or because of any indebtedness evidenced thereby, shall be had against any past, present or future stockholder, employee, officer, trustee or director, as such, of the Issuer, the General Partner, and any Guarantor or of any successor, either directly or through the Issuer, the General Partner, and any Guarantor or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the Holders and as part of the consideration for the issue of the Securities.

 

Section 115.

CONFLICT WITH TRUST INDENTURE ACT.

If any provision hereof limits, qualifies or conflicts with another provision which is required or deemed to be included in this Indenture by any of the provisions of the Trust Indenture Act, such required or deemed to be included provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.

 

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Section 116.

COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.

Holders of Securities of any series may communicate pursuant to TIA Section 312(b) with other Holders of Securities of such series or any other series with respect to their rights under this Indenture or the Securities of such series or all series. The Issuer, the Trustee, the Registrar and all other persons shall have the protection of TIA Section 312(c).

 

Section 117.

PATRIOT ACT.

The parties hereto acknowledge that in accordance with Section 326 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (the “Patriot Act”), the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Indenture agree that, so long as Patriot Act remains in effect, they shall provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the Patriot Act.

ARTICLE II

SECURITIES FORMS

 

Section 201.

FORMS OF SECURITIES.

The Securities of each series and the related Guarantees, if any, shall be in the form established in or pursuant to one or more Board Resolutions and, subject to Section 303 hereof, set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by or pursuant to this Indenture or any indenture supplemental hereto, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed thereon as the Issuer may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be listed, or to conform to usage.

Subject to Section 304, the definitive Securities or Guarantees, if any, shall be printed, lithographed or engraved, or produced by any combination of these methods, on a steel engraved border or steel engraved borders or mechanically reproduced on safety paper or may be produced in any other manner, all as determined by the Officers executing such Securities or Guarantees, if any, as evidenced by their execution of such Securities or Guarantees.

 

Section 202.

FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION.

Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:

This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

 

						U.S. Bank Trust Company, National Association, as Trustee
Dated:						By:
								Authorized Signatory

 

Section 203.

SECURITIES ISSUABLE IN GLOBAL FORM.

If Securities of or within a series are issuable in the form of one or more Global Securities, any such Global Security or Securities may provide that it or they shall represent the aggregate amount of all Outstanding Securities of such series (or such lesser amount as is permitted by the terms thereof) from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges. Any endorsement of any Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner or by such Person or Persons as shall be specified therein or in the Issuer Order to be delivered to the Trustee pursuant to Section 303 or 304. Subject to the provisions of Section 303 and, if applicable, Section 304, the Trustee shall deliver and redeliver any Global Security in permanent global form in the manner and upon instructions given by the Person or Persons specified therein or in the applicable Issuer Order. If an Issuer Order pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any instructions by the Issuer with respect to endorsement or delivery or redelivery of a Global Security shall be in writing but need not comply with Section 102 and need not be accompanied by an Opinion of Counsel.

 

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The provisions of the last sentence of Section 303 shall apply to any Security represented by a Global Security if such Security was never issued and sold by the Issuer and the Issuer delivers to the Trustee the Global Security together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in the principal amount of Outstanding Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303.

Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by Section 301, payment of principal of and any premium and Interest on any Global Security shall be made to the Person or Persons specified therein.

Notwithstanding the provisions of Section 308 and except as provided in the preceding paragraph, the Issuer, the Trustee and any agent of the Issuer and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent Global Security the Holder of such permanent Global Security in registered form.

Any Global Security authenticated and delivered hereunder shall bear a legend, in addition to any other legend or legends permitted by Section 201, in substantially the following form:

“This Security is a Global Security within the meaning set forth in the Indenture hereinafter referred to and is registered in the name of a depositary or a nominee of a depositary. This Security is exchangeable for Securities registered in the name of a person other than the depositary or its nominee only in the limited circumstances described in the Indenture, and, unless and until it is exchanged for Securities in definitive form as aforesaid, 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 its nominee to a successor depositary or its nominee.”

ARTICLE III

THE SECURITIES

 

Section 301.

AMOUNT UNLIMITED; ISSUABLE IN SERIES.

The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.

The Securities may be issued in one or more series. There shall be established in one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions and, subject to Section 303, set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series:

(1) the title of the Securities of the series (which shall distinguish the Securities of such series from all other series of Securities);

(2) whether such Securities will be senior or subordinated and, if subordinated, the definition of senior indebtedness and other terms and conditions applicable thereto, and whether such Securities will be secured or unsecured and if secured, the nature of the collateral securing the Securities;

(3) the aggregate principal amount of the Securities of the series and any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 1107 or 1305);

(4) the date or dates, or the method by which such date or dates will be determined, on which the principal of and premium, if any, on the Securities of the series shall be payable;

(5) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest will be payable and the Regular Record Date, if any, for the interest payable on any Security on any Interest Payment Date, or the method by which such date shall be determined, and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30-day months;

 

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(6) the place or places where the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), if any, payable in respect of, Securities of the series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer or exchange and notices or demands to or upon the Issuer in respect of the Securities of the series and this Indenture may be served;

(7) the period or periods within which, the price or prices at which, the currency or currencies, currency unit or units or composite currency or currencies in which, and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer, if the Issuer is to have the option;

(8) the obligation, if any, or right of the Issuer to redeem Securities of the series pursuant to any sinking fund or other terms and provisions and the details thereof, and the date or dates on which, the price or prices at which, the currency or currencies, currency unit or units or composite currency or currencies in which, upon which Securities of the series shall be repurchased at the option of the Holders of Securities of the series and other detailed terms and provisions of these repurchase obligations;

(9) if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any Securities of the series shall be issuable;

(10) if other than the Trustee, the identity of each Security Registrar and/or Paying Agent for the Securities of the series;

(11) if other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable upon acceleration of the Maturity Date thereof pursuant to Section 502, or the method by which such portion shall be determined;

(12) if other than Dollars, the Foreign Currency or Foreign Currencies in which payment of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), if any, on the Securities of the series shall be payable or in which the Securities of the series shall be denominated and the manner of determining the equivalent thereof in Dollars for purposes of the definition of “Outstanding” in Section 101;

(13) whether the amount of payments of principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), if any, on the Securities of the series may be determined by reference to an index based on a currency or currencies or composite currency or currencies other than that in which the Securities are denominated or otherwise designated to be payable or by reference to a commodity, commodity index, stock exchange index or financial index, and the manner in which such amounts shall be determined;

(14) whether the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), if any, on the Securities of the series are to be payable, at the election of the Issuer or a Holder thereof, in a currency or currencies or composite currency or currencies other than that in which such Securities are denominated or otherwise stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made, and the time and manner of, and identity of the exchange rate agent with responsibility for, determining the exchange rate between the currency or currencies or composite currency or currencies in which such Securities are denominated or otherwise stated to be payable and the currency or currencies, currency unit or units or composite currency or currencies in which such Securities are to be so payable;

(15) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;

(16) any deletions from, modifications of or additions to the defined terms, Events of Default or covenants of the Issuer or any Guarantor or other provisions of this Indenture with respect to Securities of the series, whether or not such defined terms, Events of Default, covenants or other provisions are consistent with the defined terms, Events of Default, covenants or other provisions set forth herein;

(17) whether any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are to be issuable in permanent global form with or without coupons and, if so, whether beneficial owners of interests in any such permanent Global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 305, and, if Registered Securities of the series are to be issuable as a Global Security, the identity of the depositary for such series;

 

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(18) the Person to whom any interest on any Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, and the manner in which, and the extent to which, or the manner in which, any interest payable on a temporary Global Security on an Interest Payment Date will be paid if other than in the manner provided in Section 304;

(19) the applicability, if any, of Section 402 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article 4;

(20) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and/or terms of such certificates, documents or conditions;

(21) if the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities to be authenticated and delivered;

(22) whether and under what circumstances the Issuer or any Guarantor will pay Additional Amounts as contemplated by Section 1010 on the Securities of the series in respect of any tax, assessment or other governmental charge and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);

(23) whether the obligations of Issuer under the Securities of such series are subject to any Guarantee, the Guarantors of such series of Securities (which may not include the Subsidiary Guarantors who are a party to this Indenture) and the terms and form of such Guarantee (including, without limitation, the terms of any release);

(24) the terms and conditions, if any, upon which the Securities of the series may be convertible into or exchangeable for Capital Stock or other securities and the terms and conditions upon which such conversion or exchange may be effected, including, without limitation, the initial conversion or exchange price or rate (or manner of calculation thereof), the portion that is convertible or exchangeable or the method by which any such portion shall be determined, the conversion or exchange period, provisions as to whether conversion or exchange will be at the option of the holders or at the option of the Issuer, the events requiring an adjustment of the conversion or exchange price, provisions affecting conversion or exchange in the event of the redemption of such Securities, and any limitations on the transfer or ownership of Capital Stock in connection with the preservation of the General Partner’s status as a real estate investment trust; and

(25) any other terms of the series.

All Securities of any one series and, as applicable, the Guarantees appertaining to such series shall be substantially identical, except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such Officers’ Certificate or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances of additional Securities of such series.

If any of the form or terms of the Securities of any series are established by action taken pursuant to one or more Board Resolutions, a copy of an appropriate record of such action(s) shall be certified by the Secretary or an Assistant Secretary of the General Partner on behalf of the Issuer and delivered to the Trustee at or before the delivery of the Officers’ Certificate setting forth the terms of the Securities of such series.

 

Section 302.

DENOMINATIONS.

The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301. With respect to Securities of any series denominated in Dollars, in the absence of any such provisions with respect to the Securities or any series, the Securities of such series shall be issuable in denominations of $2,000 and any integral multiple of $1,000 in excess thereof.

 

Section 303.

EXECUTION, AUTHENTICATION, DELIVERY AND DATING.

The Securities shall be executed on behalf of the Issuer by the General Partner’s Chief Executive Officer, President, Chief Financial Officer or one of the General Partner’s Executive Vice Presidents, Senior Vice Presidents or Vice Presidents. The related Notation of Guarantee, if any, shall be executed on behalf of each Guarantor by such Guarantor’s Chief Executive Officer, President, Chief Financial Officer or one of such Guarantor’s Executive Vice Presidents, Senior Vice Presidents or Vice Presidents. The signature of any of these officers on the Securities and Notations of Guarantees, if any, may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities and Notations of Guarantees.

 

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Securities or Notations of Guarantees bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Issuer or, as applicable, any Guarantor, shall bind the Issuer or such Guarantor, notwithstanding that such individuals or any of them have ceased to hold such offices before the authentication and delivery of such Securities or Notation of Guarantee or did not hold such offices at the date of such Securities or Notation of Guarantee.

At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series, together with any Notations of Guarantees properly executed by the applicable Guarantor(s), properly executed by the Issuer to the Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Securities, and the Trustee in accordance with the Issuer Order shall authenticate and deliver such Securities.

If all the Securities of any series are not to be issued at one time and if the terms of such series as established in or pursuant to a Board Resolution, Officers’ Certificate or supplemental indenture shall so permit, such Issuer Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining the terms of particular Securities of such series, such as interest rate or formula, maturity date, date of issuance and date from which interest shall accrue.

In authenticating Securities of any series, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully protected in relying upon,

(1) an Opinion of Counsel stating to the effect that:

(A) the form or forms of such Securities and the related Guarantees, if any, have been established in conformity with the provisions of this Indenture;

(B) the terms of such Securities and the related Guarantees, if any, have been established in conformity with the provisions of this Indenture; and

(C) such Securities, together with the related Guarantees, if any, when completed by appropriate insertions and executed and delivered by the Issuer and each Guarantor to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legally valid and binding obligations of the Issuer and such Guarantor, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent transfer, preferences and other similar laws of general applicability relating to or affecting the rights and remedies of creditors to general equitable principles, limitations on enforceability where such provisions are contrary to public policy and other customary exceptions; and

(2) an Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the issuance of the Securities have been complied with and that, to the best of the knowledge of the signers of such certificate, no Event of Default with respect to any of the Securities shall have occurred and be continuing.

If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will adversely affect the Trustee’s own rights, duties, obligations or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.

Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all the Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Officers’ Certificate otherwise required pursuant to Section 301 or an Issuer Order or an Opinion of Counsel or an Officers’ Certificate otherwise required pursuant to the preceding paragraph at the time of issuance of each Security of such series, but such order, opinion and certificates, with appropriate modifications to cover such future issuances, shall be delivered at or before the time of issuance of the first Security of such series.

Each Security and related Notation of Guarantee, if any, shall be dated the date of the authentication of such Security.

No Security or Guarantee shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature of an authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only

 

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evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing, if any Security (including a Global Security) shall have been authenticated and delivered hereunder but never issued and sold by the Issuer, and the Issuer shall deliver such Security to the Trustee for cancellation as provided in Section 309 together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued and sold by the Issuer, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.

 

Section 304.

TEMPORARY SECURITIES.

Pending the preparation of definitive Securities of any series, the Issuer may execute, and upon receipt of an Issuer Order, the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form, or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such Securities. In the case of Securities of any series, such temporary Securities may be in global form.

Except in the case of temporary Securities (which shall be exchanged as otherwise provided herein or as otherwise provided in or pursuant to a Board Resolution or supplemental indenture), if temporary Securities of any series are issued, the Issuer will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Issuer in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations and containing identical terms and provisions. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.

Unless otherwise provided in or pursuant to a Board Resolution or otherwise specified in an Officers’ Certificate or supplemental indenture, the following provisions of this Section 304 shall govern the exchange of temporary Securities other than through the facilities of The Depository Trust Company (“DTC”). If any such temporary Security is issued in global form, then such temporary Global Security shall, unless otherwise provided therein, be delivered to the London office of a depositary or common depositary (the “Common Depositary”), for the benefit of Euroclear and Clearstream, for credit to the respective accounts of the beneficial owners of such Securities (or to such other accounts as they may direct).

Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary Global Security (the “Exchange Date”), the Issuer shall deliver to the Trustee definitive Securities, in aggregate principal amount equal to the principal amount of such temporary Global Security, executed by the Issuer. On or after the Exchange Date, such temporary Global Security shall be surrendered by the Common Depositary to the Trustee, as the Issuer’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary Global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such temporary Global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary Global Security shall be in bearer form, registered form, permanent global bearer form or permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof; provided, however, that, unless otherwise specified in such temporary Global Security, upon such presentation by the Common Depositary, such temporary Global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary global security held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Clearstream as to the portion of such temporary Global Security held for its account then to be exchanged, each in the form set forth in Exhibit B to this Indenture or in such other form as may be established pursuant to Section 301.

Unless otherwise specified in such temporary Global Security, the interest of a beneficial owner of Securities of a series in a temporary Global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in Exhibit B to this Indenture (or in such other form as may be established pursuant to Section 301), dated no earlier than 15 days prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear and Clearstream, the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such temporary Global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary Global Security, except that a Person receiving definitive Securities

 

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must bear the cost of insurance, postage, transportation and the like unless such Person takes delivery of such definitive Securities in person at the offices of Euroclear or Clearstream. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary Global Security shall be delivered only outside the United States.

Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by Section 301, interest payable on a temporary Global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear and Clearstream on such Interest Payment Date upon delivery by Euroclear and Clearstream to the Trustee of a certificate or certificates in the form set forth in Exhibit B to this Indenture (or in such other forms as may be established pursuant to Section 301), for credit without further interest on or after such Interest Payment Date to the respective accounts of Persons who are the beneficial owners of such temporary Global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case may be, a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to such Exchange Date in the form set forth in Exhibit B to this Indenture (or in such other forms as may be established pursuant to Section 301). Notwithstanding anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs and of the third paragraph or Section 303 and the interests of the Persons who are the beneficial owners of the temporary Global Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like tenor on the Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal or interest owing with respect to a beneficial interest in a temporary Global Security will be made unless and until such interest in such temporary Global Security shall have been exchanged for an interest in a definitive Security. Any interest so received by Euroclear and Clearstream and not paid as herein provided shall be returned to the Trustee prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Issuer.

 

Section 305.

REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.

The Issuer shall cause to be kept at the Corporate Trust Office of the Trustee or in any office or agency of the Issuer in a Place of Payment a register for each series of Securities (the registers maintained in such office or in any such office or agency of the Issuer in a Place of Payment being herein sometimes referred to collectively as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Securities and of transfers of Securities. The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable time. The Trustee, at its Corporate Trust Office, is hereby initially appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities on such Security Register as herein provided. If the Trustee shall cease to be Security Registrar, it shall have the right to examine the Security Register at all reasonable times.

Subject to the provisions of this Section 305, upon surrender for registration of transfer of any Security of any series at any office or agency of the Issuer in a Place of Payment for that series, the Issuer shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of a like aggregate principal amount, bearing a number not contemporaneously outstanding, and containing identical terms and provisions, with Notations of Guarantees, if any, for Guarantees appertaining to the surrendered Security.

Subject to the provisions of this Section 305, at the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denomination or denominations and of a like aggregate principal amount, containing identical terms and provisions, upon surrender of the Securities to be exchanged at any such office or agency. Whenever any such Securities are so surrendered for exchange, the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, with Notations of Guarantees, if any, for Guarantees appertaining to the surrendered Security.

Except as otherwise specified as contemplated by Section 301, any permanent Global Security shall be exchangeable only as provided in this paragraph. If the depositary for any permanent Global Security is DTC, then, unless the terms of such Global Security expressly permit such Global Security to be exchanged in whole or in part for definitive Securities, a Global Security may be transferred, in whole but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for such Global Security selected or approved by the Issuer or to a nominee of such successor to DTC. If at any time (i) DTC notifies the Issuer that it is unwilling or unable to continue as depositary or if DTC ceases to be a clearing agency registered as such under the Exchange Act at any time when the depositary is required to be so registered in order to act as depositary for the applicable Global Security and a successor depositary is not appointed within 90 days after the Issuer receives such notice or learns of such ineligibility, (ii) the Issuer determines that the Securities of a series shall no longer be represented by a Global Security and executes and delivers to the Trustee an Officers’ Certificate to such effect or (iii) an Event of Default with respect to the Securities of such series shall have occurred and

 

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be continuing and beneficial owners representing a majority in aggregate principal amount of the Outstanding Securities of such series advise DTC to cease acting as depositary for the applicable Global Security, then the Issuer shall execute, and the Trustee shall authenticate and deliver, definitive Securities of like series, rank, tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such Global Security or Securities. If any beneficial owner of an interest in a permanent Global Security is otherwise entitled to exchange such interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 301 and provided that any applicable notice provided in the permanent Global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Issuer shall execute, and the Trustee shall authenticate and deliver, definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent Global Security. On or after the earliest date on which such interests may be so exchanged, such permanent Global Security shall be surrendered for exchange by DTC or such other depositary as shall be specified in the Issuer Order with respect thereto to the Trustee, as the Issuer’s agent for such purpose. If a Registered Security is issued in exchange for any portion of a permanent Global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date or (ii) any Special Record Date and the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, Interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom Interest or Defaulted Interest, as the case may be, in respect of such portion of such permanent Global Security is payable in accordance with the provisions of this Indenture.

All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture and the Guarantee, if any, as the Securities surrendered upon such registration of transfer or exchange.

Every Security presented or surrendered for registration of transfer or for exchange or repayment shall (if so required by the Issuer or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer (including evidence of title and identity) in form satisfactory to the Issuer and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.

No service charge shall be made for any registration of transfer or exchange of Securities or any redemption or repayment, but the Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 1107 or 1305 or the second sentence of the third preceding paragraph not involving any transfer.

Neither the Issuer nor the Trustee shall be required to (1) issue, register the transfer of or exchange any Security if such Security may be among those selected for redemption during a period beginning at the opening of business 15 days before the mailing or first publication, as the case may be, of notice of redemption of such Securities and ending at the close of business on the day of the mailing of the relevant notice of redemption, or (2) register the transfer of or exchange any Security, or portion thereof, so selected for redemption in whole or in part, except, in the case of any Security to be redeemed in part, the portion thereof not to be redeemed, or (3) issue, register the transfer of or exchange any Security which has been surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.

 

Section 306.

MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.

If any mutilated Security or a Security with a mutilated Guarantee is surrendered to the Trustee or the Issuer, together with, in proper cases, such security or indemnity as may be reasonably required by the Issuer or the Trustee to save each of them or any agent of either of them harmless, the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding, with Notations of Guarantees, if any, for Guarantees appertaining to the surrendered Security.

If there shall be delivered to the Issuer and to the Trustee (1) evidence to their satisfaction of the destruction, loss or theft of any Security or Guarantee and (2) such security or indemnity as may be reasonably required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Issuer or the Trustee that such Security or Guarantee has been acquired by a bona fide purchaser, the Issuer shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen Guarantee, a new Security of the same series and principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding, with Notations of Guarantees, if any, for Guarantees appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen Guarantee appertains.

 

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Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Issuer in its discretion may, instead of issuing a new Security, pay such Security.

Upon the issuance of any new Security under this Section 306, the Issuer may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.

Every new Security of any series issued pursuant to this Section 306 in lieu of any mutilated, destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture and the Guarantee, if any, equally and proportionately with any and all other Securities of that series duly issued hereunder.

The provisions of this Section 306 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or Guarantees.

 

Section 307.

PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.

Except as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 301, Interest on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such Interest in the relevant Security Register; provided, however, that, except with respect to Global Securities or as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 301, each installment of Interest on any Security may at the Issuer’s option be paid by (1) mailing a check for such interest payable to or upon the written order of the Person entitled thereto, to the address of such Person as it appears on the Security Register or (2) wire transfer to an account maintained by the payee located inside the United States.

Unless otherwise provided as contemplated by Section 301, every permanent Global Security will provide that Interest, if any, payable on any Interest Payment Date will be paid to DTC, Euroclear and/or Clearstream, as the case may be, with respect to that portion of such permanent Global Security held for its account by Cede & Co. or the Common Depositary or other nominee, as the case may be, for the purpose of permitting such party to credit the Interest received by it in respect of such permanent Global Security to the accounts of the beneficial owners thereof.

Except as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 301, any Interest on any Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder thereof on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Issuer, at its election, in each case as provided in clause (1) or (2) below:

(1) The Issuer may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment (which shall not be less than 20 days after such notice is received by the Trustee), and at the same time the Issuer shall deposit with the Trustee an amount of money in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Issuer of such Special Record Date and, in the name and at the expense of the Issuer, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series (or their respective Predecessor Securities) at his address as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2).

 

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(2) The Issuer may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Issuer to the Trustee of the proposed payment pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.

Subject to the foregoing provisions of this Section 307 and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.

 

Section 308.

PERSONS DEEMED OWNERS.

Prior to due presentment of a Security for registration of transfer, the Issuer, the Guarantors, the Trustee and any agent of the Issuer, the Guarantors or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium, if any) and (subject to Section 305 and 307) Interest (including the Redemption Price upon redemption pursuant to Article 11), such Security and for all other purposes whatsoever, whether or not such Security be overdue, and neither the Issuer, the Guarantors, the Trustee nor any agent of the Issuer, the Guarantors or the Trustee shall be affected by notice to the contrary. All such payments so made to any such Person, or upon such Person’s order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for money payable upon any such Security.

No owner of any beneficial interest in any Global Security held on its behalf by a depositary shall have any rights under this Indenture with respect to such Global Security and such depositary (or its nominee) shall be treated by the Issuer, the Guarantors, the Trustee, and any agent of the Issuer, the Guarantors or the Trustee as the owner of such Global Security for all purposes whatsoever. None of the Issuer, the Guarantors, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.

Notwithstanding the foregoing, with respect to any Global Security, nothing herein shall prevent the Issuer, the Guarantors, the Trustee, or any agent of the Issuer, the Guarantors or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depositary (or its nominee), as a Holder, with respect to such Global Security or impair, as between such depositary and owners of beneficial interests in such Global Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder of such Global Security.

 

Section 309.

CANCELLATION.

All Securities surrendered for payment, redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and Securities surrendered directly to the Trustee for any such purpose shall be promptly cancelled by it. The Issuer may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Issuer has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. If the Issuer shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 309, except as expressly permitted by this Indenture. Cancelled Securities held by the Trustee shall be returned to the Issuer.

 

Section 310.

COMPUTATION OF INTEREST.

Except as otherwise specified as contemplated by Section 301 with respect to Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year consisting of twelve 30-day months.

 

Section 311.

PAYING AGENT TO HOLD MONEY IN TRUST.

The Issuer shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Holders of Securities of any series, or the Trustee, all money held by the Paying Agent for the payment of principal of (or premium, if any) or Interest on such the Securities of such series, and will notify the Trustee of any default by the Issuer in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Issuer at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon payment over to the

 

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Trustee, the Paying Agent (if other than the Issuer or a Subsidiary of the Issuer) shall have no further liability for the money. If the Issuer or a subsidiary of the Issuer acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Holders of Securities of any series all money held by it as Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with respect to the Issuer or subsidiary of the Issuer , the Trustee shall serve as Paying Agent for the Securities.

ARTICLE IV

SATISFACTION AND DISCHARGE; DEFEASANCE

 

Section 401.

SATISFACTION AND DISCHARGE.

This Indenture shall upon an Issuer Request cease to be of further effect with respect to any series of Securities specified in such Issuer Request (except as to (i) rights hereunder of Holders of the Securities of such series to receive all amounts owing upon the Securities of such series and the other rights, duties and obligations of Holders of the Securities of such series as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee, (ii) the rights, obligations and immunities of the Trustee hereunder and (iii) as provided below in this Section 401), and the Trustee, upon demand of and at the expense of the Issuer, shall execute instruments in form and substance satisfactory to the Trustee and the Issuer acknowledging satisfaction and discharge of this Indenture when:

(1) either

(i) all Securities of such series that have been authenticated and delivered (other than Securities of such series that have been destroyed, lost or stolen and that have been replaced or paid and Securities of such series for whose payment money has been deposited in trust and thereafter repaid) to the Trustee for cancellation; or

(ii) all Securities of such series that have not been delivered to the Trustee for cancellation: (a) have become due and payable by reason of sending a notice of redemption or otherwise; (b) will become due and payable at their stated maturity within one year; (c) have been called for redemption or are to be called for redemption within one year under arrangements reasonably satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the Issuer’s name, and at the Issuer’s expense; or (d) are deemed paid and discharged as set forth under Section 402(2); and the Issuer, in case of (a), (b) or (c), has irrevocably deposited or caused to be deposited with the Trustee in trust an amount in Dollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity and/or Government Obligations applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity) that, through the payment of principal and Interest in accordance with their terms, will provide money sufficient to pay and discharge the entire indebtedness on the Securities of such series not delivered to the Trustee for cancellation for principal of, and premium, if any, and Interest on, the Securities of such series to the date of maturity or redemption, as the case may be, in accordance with the terms of this Indenture and the Securities of such series,

(2) the Issuer has paid or caused to be paid all other sums payable under this Indenture; and

(3) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for in this Indenture relating to the satisfaction and discharge of this Indenture have been complied with.

Notwithstanding the satisfaction and discharge of this Indenture, if money shall have been deposited with the Trustee pursuant to this Section 401, then the provisions of Sections 305, 306, 309, 607, 608(5), 1002, 1003 and 1012 and this Article 4 (other than Section 402) and, if the Securities of such series will be paid on a Redemption Date, Article 11 or repayable at the option of Holders of Securities, Article 13 shall survive and remain in full force and effect. At such time as satisfaction and discharge of this Indenture shall be effective with respect to the Securities of a particular series, each Guarantor will be released from its Guarantee of the Securities of such series.

 

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Section 402.

DEFEASANCE AND COVENANT DEFEASANCE.

(1) The Issuer or the General Partner may at its option by Board Resolution, at any time, elect to have Section 402(2) or Section 402(3) be applied to the Outstanding Securities of any particular series specified in such Board Resolution upon compliance with the conditions set forth below in this Section 402.

(2) Upon the Issuer’s or the General Partner’s exercise of the above option applicable to this Section 402(2), the Issuer shall be deemed to have been discharged from its obligations with respect to the Outstanding Securities of such series on the date the conditions set forth in this Section 402(2) are satisfied (hereinafter, “legal defeasance”). For this purpose, such legal defeasance means that the Issuer shall be deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series, which shall thereafter be deemed to be “Outstanding” only for the purposes of Sections 403 and the other provisions of this Indenture referred to below in this Section 402(2), and to have satisfied all of its other obligations under the Securities of such series and this Indenture insofar as the Securities of such series are concerned (and the Trustee, at the expense of the Issuer, shall execute proper instruments acknowledging the same), except for the following provisions hereof, which shall survive such legal defeasance and remain in full force and effect with respect to the Securities of such series: (i) the rights of Holders of the Securities of such series to receive, solely from the trust fund described in Section 402(4)(i), payments in respect of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), if any, on the Securities of such series and any Additional Amounts when such payments are due, (ii) the provisions of Sections 304, 305, 306, 606, 608(5), 1002, 1003 and 1012, and this Article 4 (other than Section 402), and if the Securities of such series will be paid on a Redemption Date, Article 11 or repayable at the option of Holders of Securities, Article 13, and (iii) the rights, obligations and immunities of the Trustee hereunder. The Issuer may exercise its option under this Section 402(2) notwithstanding the prior exercise of its option under Section 402(3). Upon the effectiveness of any legal defeasance (for the avoidance of doubt, but not covenant defeasance) with respect to the Securities of a particular series, each Guarantor will be released from its Guarantee of the Securities of such series.

(3) Upon the Issuer’s or the General Partner’s exercise of the above option applicable to this Section 402(3) with respect to the Securities of any particular series, the Issuer and each Guarantor shall be released from their respective obligations under Section 1004 with respect to such Securities to keep in full force and effect its rights (charter and statutory) and franchises (but, for the avoidance of doubt, shall not be released from their respective obligations with respect to such Securities to do or cause to be done all things necessary to preserve and keep in full force and effect their respective existences (except as permitted under Article 8)) and Sections 1005 through 1007, inclusive, as well as any other covenants applicable to such Securities pursuant to Section 301 (other than the covenants set forth in Section 703, Section 1013 and Section 1014), on and after the date the conditions set forth in Section 402(4) are satisfied (hereinafter, “covenant defeasance”), and the Securities of such series shall thereafter be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with any such covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that with respect to the Outstanding Securities of a particular series, the Issuer and each Guarantor may omit to comply with, and shall have no liability in respect of, any term, condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such covenant or by reason of reference in any such Section or any such covenant or to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 501(3) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture, the Securities of such series and the related Guarantee shall be unaffected thereby.

(4) The following shall be the conditions to the effectiveness of legal defeasance pursuant to Section 402(2), and covenant defeasance pursuant to Section 402(3), to any Outstanding Securities of a series:

(i) The Issuer or the General Partner shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities, (A) an amount in Dollars or in such Foreign Currency in which such Securities are then specified as payable at Stated Maturity or on the relevant Redemption Date, as the case may be, or (B) Government Obligations applicable to such Securities (determined on the basis of the Currency in which such Securities are then specified as payable at Stated Maturity or on the relevant Redemption Date, as the case may be) which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities, money in an amount, or (C) a combination thereof, in any case, in an amount, sufficient, without consideration of any reinvestment of such principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), in the opinion of a nationally recognized firm of independent public accountants or investment bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be

 

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applied by the Trustee to pay and discharge, the principal of (and premium, if any) and Interest on such Securities on the Stated Maturity of such principal or installment of principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 on the applicable Redemption Date), as the case may be, in accordance with the terms of this Indenture and such Securities.

(ii) In the case of legal defeasance pursuant to Section 402(2) with respect to Securities of a particular series, the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee stating that (x) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of the Board Resolution, Officers’ Certificate or supplemental indenture establishing the terms of the series of such Securities pursuant to Section 301, there has been a change in applicable U.S. federal income tax law, in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders and beneficial owners of such Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if the deposit, defeasance and discharge had not occurred; or, in the case of covenant defeasance pursuant to Section 402(3), the Issuer shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee to the effect that the Holders and beneficial owners of such Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and related covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such deposit and related covenant defeasance had not occurred.

(iii) Such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer or any Guarantor is a party or by which either of them is bound.

(iv) No Event of Default or event which with notice or lapse of time or both would become an Event of Default shall have occurred and be continuing on the date of such deposit, and no Event of Default or event which with notice or lapse of time or both would become an Event of Default under Section 501(5) or 501(6) with respect to the Issuer or any Parent Guarantor shall have occurred and be continuing at any time during the period ending on and including the 91st day after the date of such deposit.

(v) The Issuer shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the legal defeasance or covenant defeasance, as the case may be, under this Indenture have been complied with.

(vi) If the monies or Government Obligations or combination thereof, as the case may be, deposited under Section 402(4)(i) above are sufficient to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities on a particular Redemption Date, the Issuer shall have given the Trustee irrevocable instructions to redeem such Securities on such date and to provide notice of such redemption to Holders as provided in or pursuant to this Indenture.

(vii) Such legal defeasance or covenant defeasance will not cause the Trustee to have a conflicting interest for the purposes of the Trust Indenture Act with respect any of the Issuer’s or the Guarantors’ securities.

(viii) Such legal defeasance or covenant defeasance will not cause any securities listed on any registered national securities exchange under the Exchange Act to be delisted.

(ix) Such legal defeasance or covenant defeasance will be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Issuer or any Guarantors in connection therewith.

(5) The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge, imposed on or assessed against the Government Obligations deposited pursuant to this Section 402 for the payment of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on Securities of a particular series other than any such tax, fee or other charge which by law is for the account of the Holders of such Securities.

(6) Anything in this Section 402 to the contrary notwithstanding, the Trustee shall deliver or pay to the Issuer from time to time upon an Issuer Request any money or Government Obligations (or any proceeds therefrom) held by it as provided in Section 402(4)(i) which, in the opinion of a nationally recognized firm of independent public accountants or investment bank expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect a legal defeasance or covenant defeasance, as applicable, in accordance with this Section 402.

 

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Section 403.

APPLICATION OF TRUST MONEY.

Subject to the provisions of Section 404, all money and Government Obligations (and proceeds therefrom) deposited with the Trustee pursuant to Section 401 or 402 in respect of Outstanding Securities of any series shall be held in trust and applied by it, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any Paying Agent (other than the Issuer, any Guarantor or any of their respective Affiliates or Subsidiaries) as the Trustee may determine, to the Persons entitled thereto, of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Outstanding Securities for whose payment such money has or Government Obligations have been deposited with or received by the Trustee; but such money and Government Obligations need not be segregated from other funds except to the extent required by law.

 

Section 404.

RETURN OF UNCLAIMED MONIES.

Subject to the restrictions of applicable law, the Trustee and each Paying Agent shall pay to the Issuer upon request any money held by them for the payment of principal (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) that remains unclaimed for two years after a right to such money has matured; provided, however, that the Trustee or such Paying Agent, before being required to make any such payment, may, at the expense of the Issuer, cause to be mailed to each Holder entitled to such money, notice that such money remains unclaimed and that after a date specified therein, which shall be at least 30 calendar days from the date of such mailing, any unclaimed balance of such money then remaining will be repaid to the Issuer. After payment to the Issuer, Holders entitled to that money must look to the Issuer or the Guarantors for payment as general creditors unless an applicable abandoned property law designates another person, and the Trustee and each Paying Agent shall be relieved of all liability with respect to such money.

 

Section 405.

REINSTATEMENT.

If the Trustee or any Paying Agent is unable to apply any moneys or Government Obligations deposited pursuant to Section 401(1) or 402(4)(i) to pay any principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on the Securities of a particular series by reason of any legal proceeding or any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Issuer’s obligations under this Indenture and such Securities and the Guarantors’ obligations under this Indenture and the related Guarantees shall be revived and reinstated as though no such deposit had occurred, until such time as the Trustee or Paying Agent is permitted to apply all such moneys and Government Obligations to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities as contemplated by Section 401 or 402, as the case may be, and Section 403; provided, however, that if the Issuer or any Guarantor makes any payment of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on such Securities or related Guarantees following the reinstatement of its obligations as aforesaid, the Issuer or the applicable Guarantor, as the case may be, shall be subrogated to the rights of the Holders of such Securities to receive such payment from the funds held by the Trustee or Paying Agent in trust once payment in full of all Guarantee Obligations has been made.

ARTICLE V

REMEDIES

 

Section 501.

EVENTS OF DEFAULT.

In case any one or more of the following (each, an “Event of Default”) (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) shall have occurred and be continuing with respect to the Securities of any particular series:

(1) the failure to pay Interest on the Securities of such series when the same becomes due and payable, and the default continues for a period of 30 days;

 

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(2) the failure to pay the principal (or premium, if any) (including the Redemption Price upon redemption or repurchase price upon repayment) of the Securities of such series, when due and payable, on Stated Maturity, upon acceleration, upon redemption or repayment or otherwise;

(3) a default in the observance or performance of any other covenant or agreement contained in the Indenture with respect to such series of Securities, and the default continues for a period of 60 days after the Issuer receives written notice specifying the default (and demanding that such default be remedied) from the Trustee or the Holders of at least 25% of the Outstanding principal amount of such series of Securities;

(4) the Guarantee, if any, of any Guarantor is not (or is claimed by such Guarantor not to be) in full force and effect with respect to the Securities of such series; or;

(5) the Issuer, any Parent Guarantor or any of their respective Significant Subsidiaries pursuant to or under or within meaning of any Bankruptcy Law:

(i) commences a voluntary case; or

(ii) consents to the entry of an order for relief against it in an involuntary case; or

(iii) consents to the appointment of any receiver, trustee, assignee, custodian, liquidator or other similar official under any Bankruptcy Law for it or for all or substantially of its property; or

(iv) makes a general assignment for the benefit of creditors; or

(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(i) is for relief against the Issuer, any Parent Guarantor or any of their respective Significant Subsidiaries in an involuntary case; or

(ii) appoints a trustee, receiver, liquidator, assignee, custodian or other similar official of the Issuer, any Parent Guarantor or any of their respective Significant Subsidiaries or for all or substantially all of its property; or

(iii) adjudges the Issuer, any Parent Guarantor or any of their respective Significant Subsidiaries as bankrupt or insolvent or orders the liquidation of the Issuer, any Parent Guarantor or any of their respective Significant Subsidiaries;

and, in each case in this clause (6), the order or decree remains unstayed and in effect for 90 calendar days;

then, and in each and every such case (other than an Event of Default specified in Section 501(5) and Section 501(6) with respect to the Issuer or any Parent Guarantor), unless the principal of all of the Securities of such series shall have already become due and payable, then in every case the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of such series may declare the principal amount of and premium, if any, as applicable, and Interest accrued and unpaid on, all of the Securities of such Series then Outstanding to be due and payable immediately by written notice thereof to the Issuer and the General Partner (and to the Trustee if given by the Holders), and upon any such declaration the same shall be immediately due and payable.

If an Event of Default specified in Section 501(5) or Section 501(6) occurs and is continuing, then the principal of and premium, if any, as applicable, and Interest accrued and unpaid on all the Securities of such series shall be immediately due and payable without any declaration or other action on the part of the Trustee or any Holder of Securities of such series.

If, at any time after the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on the Securities of a particular series 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 not less than a majority in aggregate principal amount of the Securities of such series then Outstanding on behalf of the Holders of all of the Securities of such series then Outstanding, by written notice to the Issuer 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 507, if: (a) such rescission or annulment would not conflict with any judgment or decree; (b) all Events of Default, other than the nonpayment of the principal (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) that have become due solely because of such

 

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acceleration, have been cured or waived; (c) the Issuer or the General Partner shall have deposited with the Trustee a sum sufficient to pay all overdue Interest, including Interest on overdue principal (and premium, if any) and (to the extent that payment of such Interest is lawful) overdue installments of Interest, and all principal (and premium, if any) which has become due otherwise than by such declaration of acceleration; and (d) the Issuer has paid the Trustee its reasonable compensation and reimbursed the Trustee for its expenses, disbursements and advances pursuant to Section 606. No such waiver or rescission and annulment shall extend to or shall affect any subsequent default or Event of Default, or shall impair any right consequent thereon.

In case the Trustee shall have proceeded to enforce any right under this Indenture with respect to the Securities of a particular series and such proceedings shall have been discontinued or abandoned because of such waiver or rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Issuer, the Guarantors, the Holders of the Securities of such series, and the Trustee shall be restored respectively to their several positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Guarantors, the Holders of the Securities of such series, and the Trustee shall continue as though no such proceeding had been taken.

Anything herein to the contrary notwithstanding, Interest on any overdue installments of principal of and premium, if any, as applicable, and (to the extent that payment of such Interest is lawful) Interest on the Securities of a particular series shall accrue and be payable at the same rate as Interest is otherwise payable on such Securities.

 

Section 502.

PAYMENTS OF SECURITIES ON DEFAULT; SUIT THEREFOR.

The Issuer covenants that in the case of an Event of Default with respect to Securities of a particular series pursuant to Section 501(1) or 501(2), upon demand of the Trustee, the Issuer will pay to the Trustee, for the benefit of the Holders of the Securities of such series, (i) the whole amount that then shall be due and payable on all such Securities for principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13), as the case may be, with Interest upon overdue principal (and premium, if any) and (to the extent that payment of such Interest is enforceable under applicable law) the overdue installments of accrued and unpaid Interest at the rate borne by such Securities from the required payment date and, (ii) in addition thereto, any amounts due the Trustee under Section 606. Until such demand by the Trustee, the Issuer may pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) on the Securities to the Holders, whether or not such payments in respect of the Securities are overdue.

In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceeding to judgment or final decree, and may enforce any such final judgment or final decree against the Issuer, the Guarantors or any other obligor on the Securities of such series and collect in the manner provided by law out of the property of the Issuer, the Guarantors or any other obligor on the Securities of such series wherever situated the monies adjudged or decreed to be payable.

In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Guarantor, the Issuer or any other obligor upon the Securities of any particular series or the property of any Guarantor, the Issuer or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities of such series shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Issuer or the Guarantors for the payment of overdue principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) on such Securities shall be entitled and empowered, by intervention in such proceeding or otherwise: (1) to file and prove a claim for the whole amount of principal of (and premium, if any) and Interest (including Interest on overdue principal and (to the extent that payment of such Interest is lawful) overdue Interest) and including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13, owing and unpaid in respect of such Securities and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders of such Securities allowed in such judicial proceeding, and (ii) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each Holder of such Securities to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders of such Securities, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any predecessor Trustee under Section 606. Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a Security of any series any plan of reorganization, arrangement,

 

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adjustment or composition affecting the Securities of such series or the related Guarantees or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of Securities of such series in any such proceeding; provided, however, that the Trustee may, on behalf of the Holders of Securities, vote for the election of a trustee in bankruptcy or similar official and may be a member of the creditors’ committee.

All rights of action and of asserting claims under this Indenture, or under the Securities of any series or the related Guarantees, may be enforced by the Trustee without the possession of any of the Securities of such series, or the production thereof at any trial or other proceeding relative thereto, and any such suit or proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities of such series.

In any proceedings brought by the Trustee (and in any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the Holders of the Securities, and it shall not be necessary to make any Holders of the Securities parties to any such proceedings.

 

Section 503.

APPLICATION OF MONIES COLLECTED BY TRUSTEE.

Any monies collected by the Trustee pursuant to this Article 5 shall be applied in the following order, at the date or dates fixed by the Trustee for the distribution of such monies, upon presentation of the several Securities, and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully paid:

 

FIRST

To the payment of costs and expenses of collection, including all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses and disbursements of the Trustee, its agents and counsel all other amounts due the Trustee and any predecessor Trustee under Section 606;

 

SECOND

To the payment of the amounts then due and unpaid upon the Securities for principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and repurchase price upon repayment pursuant to Article 13), in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts due and payable on the Securities for principal (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11), respectively; and

 

THIRD

To the payment of the remainder, if any, to the Issuer.

 

Section 504.

PROCEEDINGS BY HOLDERS OF SECURITIES.

No Holder of any Security of any series shall have any right by virtue of or by reference to any provision of this Indenture to institute any suit, action or proceeding in equity or at law upon or under or with respect to this Indenture, or for the appointment of a receiver, trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, except in the case of a default in the payment of principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and repurchase price upon repayment pursuant to Article 13) on such Securities, unless (a) such Holder previously shall have given to the Trustee written notice of an Event of Default and of the continuance thereof with respect to the Securities of such series, as hereinbefore provided, (b) the Holders of at least 25% in aggregate principal amount of the Securities of such series then Outstanding shall have made written request upon the Trustee to institute such action, suit or proceeding in its own name as Trustee hereunder and shall have offered to the Trustee such reasonable security or indemnity as it may require against the costs, liabilities or expenses to be incurred therein or thereby, (c) the Trustee for 60 calendar days after the receipt of such notice, request and offer of indemnity, shall have failed to institute any such action, suit or proceeding and (d) no direction inconsistent with such written request shall have been given to the Trustee by Holders of a majority in aggregate principal amount of Securities of such series then Outstanding in accordance with Section 507; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities shall have any right in any manner whatever by virtue of or by reference to any provision of this Indenture to affect, disturb or prejudice the rights of any other Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder, or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities (except as otherwise provided herein). For the protection and enforcement of this Section 504, each and every Holder of Securities and the Trustee shall be entitled to such relief as can be given either at law or in equity.

 

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Notwithstanding any other provision of this Indenture and any provision of any Security of any series, the right of any Holder of any Security of any series to receive payment of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) on such Security, on or after the respective due dates expressed in such Security or in the event of redemption or repayment, or to institute suit for the enforcement of any such payment on or after such respective dates against the Issuer or any Guarantor, shall not be impaired or affected without the consent of such Holder.

 

Section 505.

PROCEEDINGS BY TRUSTEE.

If an Event of Default occurs and is continuing with respect to the Securities of any particular series, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of such Securities by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.

 

Section 506.

REMEDIES CUMULATIVE AND CONTINUING.

To the extent permitted by law, all powers and remedies given by this Article 5 to the Trustee or to the Holders of Securities of any particular series shall be deemed cumulative and not exclusive of any thereof or of any other powers and remedies available to the Trustee or the Holders of the Securities, by judicial proceedings or otherwise, to enforce the performance or observance of the covenants and agreements contained in this Indenture, and no delay or omission of the Trustee or of any Holder of any Securities of any particular series to exercise any right or power accruing upon any default or Event of Default occurring and continuing as aforesaid shall impair any such right or power, or shall be construed to be a waiver of any such default or any acquiescence therein, and, subject to the provisions of Section 504, every power and remedy given by this Article 5 or by law to the Trustee or to the Holders of such Securities may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Holders of such Securities.

 

Section 507.

DIRECTION OF PROCEEDINGS AND WAIVER OF DEFAULTS BY MAJORITY OF HOLDERS OF SECURITIES.

The Holders of a majority in aggregate principal amount of the Securities of a particular series at the time Outstanding (or of all Securities then Outstanding under this Indenture, as the case may be) shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series (or of all Securities then outstanding under the indenture, as the case may be); provided that (a) such direction shall not be in conflict with any rule of law or with this Indenture, (b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction, and (c) the Trustee need not take any action which might involve it in personal liability or be unduly prejudicial to the Holders of such Securities not joining therein, it being understood that (subject to Section 602) the Trustee shall have no duty to ascertain whether or not such actions or forbearance are unduly prejudicial to such Holders.

The Holders of a majority in aggregate principal amount of the Securities of any particular series at the time Outstanding may, on behalf of the Holders of all of the Securities of such series, waive any past or existing default or Event of Default with respect to Securities of such series hereunder and its consequences except (i) a default in the payment of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and repurchase price upon repayment pursuant to Article 13) on the Securities of such series (unless such default has been cured and the Issuer or the General Partner shall have deposited with the Trustee a sum sufficient to pay all overdue Interest, including Interest on overdue principal (and premium, if any) and (to the extent that payment of such Interest is lawful) overdue installments of Interest, and all principal (and premium, if any) on the Securities of such series), (ii) a default in the payment of the Redemption Price or any Interest on the Securities of such series called for redemption on a Redemption Date pursuant to Article 11, or (iii) a default in respect of a covenant or provisions hereof, which under Article 9 cannot be modified or amended without the consent of the Holders of all Securities of such series then Outstanding or each Security of such series affected thereby.

Upon any such waiver, such default with respect to such Securities shall cease to exist, and any Event of Default with respect to such Securities arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default with respect to such Securities or impair any right consequent thereon.

 

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Section 508.

UNDERTAKING TO PAY COSTS.

All parties to this Indenture agree, and each Holder of a Security of any particular series by its acceptance thereof shall be deemed to have agreed, that any court may, in its discretion, require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; provided that the provisions of this Section 508 (to the extent permitted by law) shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder of Securities of such series, or group of Holders of such series, holding in the aggregate more than ten percent in principal amount of the Securities of such series at the time Outstanding, or to any suit instituted by any Holder of Securities of such series for the enforcement of the payment of the principal of (or premium, if any) or Interest (including the Redemption Price upon redemption pursuant to Article 11 or repurchase price upon repayment pursuant to Article 13) on such Security on or after the due date expressed in such Security.

ARTICLE VI

THE TRUSTEE

 

Section 601.

NOTICE OF DEFAULTS.

Within 90 calendar days after the occurrence of any default hereunder, the Trustee shall transmit in the manner and to the extent provided in TIA Section 313(c), notice of such default hereunder known to a Responsible Officer of the Trustee, unless such default shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11) on any Security of a particular series, the Trustee shall be protected in withholding such notice if and so long as Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in the interests of the Holders of the Securities of such series; and provided further that in the case of any default or breach with respect to Securities of any series of the character specified in Section 501(3), no such notice to Holders of Securities of such series shall be given until at least 60 days after the occurrence thereof.

 

Section 602.

CERTAIN RIGHTS OF TRUSTEE.

Subject to the provisions of TIA Section 315(a) through 315(d):

(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution, Officers’ Certificate, certificate, statement, instrument, Opinion of Counsel, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;

(2) any request or direction of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Request or Issuer Order (other than delivery of any Security to the Trustee for authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;

(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’ Certificate;

(4) before the Trustee acts or refrains from acting, the Trustee may consult with counsel (which counsel may be counsel for the Issuer or any Guarantor) and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;

(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders of Outstanding Securities pursuant to this Indenture, unless such Holders shall have offered and, if requested, provided to the Trustee security or indemnity reasonably satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;

(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document, unless requested in writing so to do by the Holders of not less than a majority in aggregate principal amount of the

 

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Outstanding Securities of any series; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require reasonable indemnity against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such examination shall be paid by the Holders or, if paid by the Trustee, shall be repaid by the Holders upon demand. The Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer and the Guarantors relevant to the facts or matters that are the subject of its inquiry, personally or by agent or attorney;

(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;

(8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and reasonably believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;

(9) the Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;

(10) the permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty and the Trustee shall not be answerable for other than its negligence or willful misconduct;

(11) except for (i) a default under Sections 501(1) or 501(2) hereof, or (ii) any other event of which a Responsible Officer of the Trustee has “actual knowledge” and which event constitutes or, with the giving of notice or the passage of time or both, would constitute an Event of Default under this Indenture with respect to Securities of any particular series, the Trustee shall not be deemed to have notice of any default or Event of Default unless specifically notified in writing of such event by the Issuer or the Holders of not less than 25% in aggregate principal amount of the Securities of such series then Outstanding and such notice contains a reference to this Indenture and the Securities; as used herein, the term “actual knowledge” means the actual fact or statement of knowing, without any duty to make any investigation with regard thereto;

(12) in no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and

(13) in no event shall the Trustee incur any liability for any failure in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitations, strikes, work stoppage, accidents, acts of war, or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, acts or provisions of any present or future law or regulation or governmental authority, fire, communication line failures, earthquakes, civil unrest, local or national disturbance or disaster, and the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. Except during the continuance of an Event of Default, the Trustee undertakes to perform only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee.

 

Section 603.

NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.

The recitals contained herein and in the Securities and any related Guarantees, except the Trustee’s certificate of authentication, shall be taken as the statements of the Issuer and the Guarantors, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or any related Guarantees, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Issuer of Securities or the proceeds thereof.

 

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Section 604.

MAY HOLD SECURITIES AND COMMON STOCK.

The Trustee, any Paying Agent, Security Registrar, Authenticating Agent or any other agent of the Issuer or the Guarantors, in its individual or any other capacity, may become the owner or pledgee of Securities or Common Stock and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Issuer and the Guarantors with the same rights it would have if it were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such other agent.

 

Section 605.

MONEY HELD IN TRUST.

Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed with the Issuer.

 

Section 606.

COMPENSATION AND REIMBURSEMENT.

The Issuer agrees:

(1) to pay to the Trustee from time to time, and the Trustee shall be entitled to, reasonable compensation for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust);

(2) except as otherwise expressly provided herein, to reimburse each of the Trustee and any predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and

(3) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it harmless against, any loss, liability or expense incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending itself against or investigating any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.

The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Sections 501(5) or 501(6), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.

As security for the performance of the obligations of the Issuer under this Section, the Trustee shall have a Lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) on any Securities. The provisions of this Section shall survive the termination of this Indenture or the earlier resignation or removal of the Trustee.

 

Section 607.

CORPORATE TRUSTEE REQUIRED; ELIGIBILITY; CONFLICTING INTERESTS.

There shall at all times be a Trustee hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and surplus of at least $50,000,000.

If the Trustee publishes reports of condition at least annually, pursuant to law or the requirements of federal, state, territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of the Trustee shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article. The Trustee shall comply with the provisions of Section 310(b) of the Trust Indenture Act. Neither the Issuer, the Guarantors nor any Person directly or indirectly controlling, controlled by, or under common control with the Issuer or the Guarantors shall serve as Trustee.

 

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If and when the Trustee shall be or become a creditor of the Issuer or the Guarantors or any other obligor under the Securities, the Trustee shall be subject to the provisions of the TIA regarding the collection of claims against the Issuer, the Guarantors or any such other obligor, as the case may be.

 

Section 608.

RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.

(1) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 609.

(2) The Trustee may resign at any time by giving written notice thereof to the Issuer. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.

(3) The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Trustee and to the Issuer.

(4) If at any time:

(i) the Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Issuer or by any Holder of a Security who has been a bona fide purchaser of a Security for at least six months, or

(ii) the Trustee shall cease to be eligible under Section 607 and shall fail to resign after written request therefor by the Issuer or by any Holder of a Security who has been a bona fide purchaser of a Security for at least six months, or

(iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (A) the Issuer by or pursuant to a Board Resolution may remove the Trustee and appoint a successor Trustee, or (B) subject to TIA Section 315(e), any Holder of a Security who has been a bona fide purchaser of a Security for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.

(5) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause with respect to the Securities of one or more series, the Issuer, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Issuer and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Issuer. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Issuer or the Holders of Securities of such series and accepted appointment in the manner hereinafter provided, any Holder of Securities of such series who has been a bona fide purchaser of Securities of such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.

(6) Subject to Section 1002, the Issuer shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee by mailing or causing to be mailed such notice to the Holders of Securities of such series as they appear on the Security Register. Each notice shall include the name of the successor Trustee with respect to such series and the address of its Corporate Trust Office.

 

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Section 609.

ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.

(1) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Issuer and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Issuer or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its claim, if any, provided for in Section 606.

(2) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Issuer, the Guarantors, the retiring Trustee and each successor Trustee shall execute and deliver an indenture supplemental hereto, pursuant to Article 9 hereof, wherein each successor Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to Securities of that or those series to which the appointment of such successor Trustee relates, (ii) if the retiring Trustee is not retiring as to all Outstanding Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to Securities of that or those series to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Issuer or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.

(3) Upon request of any such successor Trustee, the Issuer shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (1) or (2) of this Section 609, as the case may be.

(4) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.

 

Section 610.

MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS.

Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such Person shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities. In case any Securities shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities, in either its own name or that of its predecessor Trustee, with the full force and effect which this Indenture provides for the certificate of authentication of the Trustee.

 

Section 611.

APPOINTMENT OF AUTHENTICATING AGENT.

At any time when any of the Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption or repayment thereof, and such Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of the Trustee, a copy of which instrument shall be promptly furnished to the Issuer. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include

 

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authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Issuer and shall at all times be a bank or trust company or corporation organized and doing business and in good standing under the laws of the United States of America or of any state or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authorities. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.

Any Person into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Person succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such Person shall be otherwise eligible under this Section, without the execution or filing of any paper or further act on the part of the Trustee or the Authenticating Agent.

An Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Issuer. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Issuer. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Issuer and shall give notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent will serve in the manner set forth in Section 106 by mailing or causing to be mailed such notice to the Holders of Securities of such series as they appear on the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section.

The Issuer agrees to pay to each Authenticating Agent from time to time reasonable compensation including reimbursement of its reasonable expenses for its services under this Section.

If an appointment with respect to one or more series is made pursuant to this Section, the Securities may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication substantially in the following form:

“This is one of the Securities designated therein referred to in the within-mentioned Indenture.

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
		as Authenticating Agent
By:
		Authorized Signatory

Dated:    ”

 

Section 612.

CERTAIN DUTIES AND RESPONSIBILITIES OF THE TRUSTEE.

(1) With respect to the Securities, except during the continuance of an Event of Default with respect to any particular series of Securities:

(i) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and imposed by the Trust Indenture Act and no implied covenants or obligations shall be read into this Indenture against the Trustee; and

 

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(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture, but shall not be under any duty to verify the contents or accuracy thereof.

(2) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.

(3) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:

(i) this Subsection shall not be construed to limit the effect of Subsection (1) of this Section;

(ii) the Trustee shall not be liable for any error of judgment made in good faith, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts;

(iii) the Trustee shall not be liable to Holders of Securities of any particular series with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding Securities of such series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;

(iv) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it; and

(v) except as explicitly specified otherwise herein, the Issuer will be responsible for making all calculations required under this Indenture and the Securities. The Issuer will make all these calculations in good faith and, absent manifest error, the Issuer’s calculations will be final and binding on Holders of the Securities. The Issuer will provide a schedule of its calculations to the Trustee, and the Trustee is entitled to rely upon the accuracy of the Issuer’s calculations without independent verification. The Trustee will forward the Issuer’s calculations to any Holder of the Securities upon request.

(4) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this Section 612.

ARTICLE VII

HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY

 

Section 701.

DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.

Every Holder of Securities, by receiving and holding the same, agrees with the Issuer and the Trustee that neither the Issuer nor the Trustee nor any Authenticating Agent nor any Paying Agent nor any Security Registrar shall be held accountable by reason of the disclosure of any information as to the names and addresses of the Holders of Securities in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material pursuant to a request made under TIA Section 312(b).

 

Section 702.

REPORTS BY TRUSTEE.

Within 60 days after May 15 of each year commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit by mail to all Holders of Securities as provided in TIA Section 313(c) a brief report dated as of such May 15 if required by TIA Section 313(a). A copy of each such report at the time of its mailing to Holders of Securities of any series shall be filed with the Commission and each national securities exchange on which the Securities of such series are listed. The Issuer shall promptly notify the Trustee when Securities of any series are listed on any national securities exchange.

 

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Section 703.

REPORTS BY ISSUER.

So long as any Securities are Outstanding, the Issuer and the General Partner will:

(1) file with the Trustee, within 15 days after the Issuer or the General Partner, as the case may be, is required to file the same with the Commission, copies of the annual reports and information, documents and other reports which it may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act;;

(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such additional information, documents and reports with respect to compliance by it with the conditions and covenants of the Indenture as may be required from time to time by such rules and regulations; and

(3) transmit by mail to the Holders of Securities, within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in TIA Section 313(c), such summaries of any information, documents and reports required to be filed by it pursuant to paragraph (1) or (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.

Reports, information and documents filed with the Commission via the Commission’s Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”) will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of this covenant; provided, however, that the Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed via EDGAR. If, notwithstanding the foregoing, the Commission will not accept the required filings through EDGAR for any reason, the Issuer and the General Partner may make the reports referred to in clauses (1) and (2) above available on its website within fifteen (15) days after it would be required to file such reports with the Commission, and such reports will be deemed to be delivered to the Trustee as of the time they are made available.

 

Section 704.

ISSUER TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.

The Issuer will furnish or cause to be furnished to the Trustee:

(1) semiannually, not later than 15 days after the Regular Record Date for interest for each series of Securities, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of such series as of such Regular Record Date or, if there is no Regular Record Date for interest for such series of Securities, semiannually, upon such dates as are set forth in or established pursuant to the Board Resolution or indenture supplemental hereto authorizing such series, and

(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Issuer of any such request a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished, provided, however, that, so long as the Trustee is the Security Registrar, no such list shall be required to be furnished.

ARTICLE VIII

CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE

 

Section 801.

ISSUER AND PARENT GUARANTORS MAY CONSOLIDATE ON CERTAIN TERMS.

(1) Neither the Issuer nor any Parent Guarantor shall merge or consolidate with or into, or sell, assign, convey, transfer or lease all or substantially all of its properties and assets to, any other Person, unless the following conditions are met:

(i) the Issuer or such Parent Guarantor, as the case may be, shall be the continuing entity, or the successor entity (if other than the Issuer or a Parent Guarantor, as the case may be) formed by or resulting from any merger or consolidation or which shall have received the sale, assignment, conveyance, transfer or lease of properties and assets shall be domiciled in the United States, any state thereof or the District of Columbia and, in the case of the Issuer, shall expressly assume the due and punctual payment of the principal of, and premium, if any, and interest on, all of the Securities of such series and the due and punctual performance and observance of all of the covenants of the Issuer in this Indenture or, in the case of such Parent Guarantor, shall expressly assume the due and punctual payment of all amounts due under its Guarantee of the Securities of such series and the due and punctual performance and observance of all of the covenants of such Parent Guarantor in this Indenture and its Guarantee, as the case may be;

 

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(ii) immediately after giving effect to the transaction, no Event of Default under this 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

(iii) an Officers’ Certificate and an Opinion of Counsel shall have been delivered to the Trustee, each stating that such transaction and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Indenture and that all conditions precedent provided for relating to such transaction have been complied with.

 

Section 802.

ISSUER OR PARENT GUARANTOR SUCCESSOR TO BE SUBSTITUTED.

In the event of any transaction described in and complying with the conditions set forth in Section 801 of this Indenture in which neither the Issuer nor any Parent Guarantor is the continuing entity, the successor Person formed or remaining shall succeed, and be substituted for, and may exercise every right and power of the Issuer or a Parent Guarantor, as the case may be, and (except in the case of a lease) the Issuer or such Parent Guarantor shall be discharged from its obligations, as the case may be, under this Indenture, the Securities and its Guarantee, as applicable.

 

Section 803.

SUBSIDIARY GUARANTORS AND FUTURE GUARANTORS MAY CONSOLIDATE ON CERTAIN TERMS.

(1) No Subsidiary Guarantor or Future Guarantor shall merge or consolidate with or into, or sell, assign, convey, transfer or lease all or substantially all of its properties and assets to, any other Person, unless the following conditions are met:

(i) such Subsidiary Guarantor or Future Guarantor, as the case may be, shall be the continuing entity, or the successor entity (if other than such Subsidiary Guarantor or Future Guarantor, as applicable) formed by or resulting from any merger or consolidation or which shall have received the sale, assignment, conveyance, transfer or lease of properties and assets (A) shall be domiciled in the United States, any state thereof or the District of Columbia or any member country in the Organization for Economic Co-operation and Development or any Governmental Authority thereof, (B) if organized and existing other than under the laws of the United States, any state thereof or the District of Columbia, shall (I) expressly agree to make payment of all amounts due under the Guarantee of such Subsidiary Guarantor or Future Guarantor, as applicable, free and clear of, and without deduction or withholding for, any Taxes, unless required by law, in which case such successor entity shall also agree to pay Additional Amounts, and (II) irrevocably and unconditionally (a) consent and submit to the jurisdiction of any United States federal court or New York state court, in each case located in the Borough of Manhattan in The City of New York, in respect of any legal action, suit or proceeding against it arising out of, or in connection with, this Indenture or the Guarantees, (b) waive, to the fullest extent permitted by law, any objection to the laying of venue in any such court or that any such legal action, suit or proceeding has been brought in an inconvenient forum and (c) appoint an agent (which may be a Parent Guarantor, the Issuer or any of their Domestic Subsidiaries doing business in the Borough of Manhattan in The City of New York) for service of process in The City of New York in any such legal action, suit or proceeding and (C) shall expressly assume the due and punctual payment of all amounts due under the Guarantee of such Subsidiary Guarantor or Future Guarantor, as applicable, and the due and punctual performance and observance of all of the covenants of such Subsidiary Guarantor or Future Guarantor, as applicable, in this Indenture and the Guarantee, as the case may be; provided, that the foregoing requirements will not apply in the case of a Subsidiary Guarantor or any Future Guarantor that is a Subsidiary of the General Partner or the Issuer (x) that has been disposed of in its entirety to another Person (other than to the General Partner or an affiliate of the General Partner), whether through a merger, consolidation or sale of equity interests or has sold, assigned, conveyed, transferred or leased all or substantially all of its assets or (y) that, as a result of the disposition of all or a portion of its equity interests, ceases to be a Subsidiary of the General Partner or the Issuer;

(ii) immediately after giving effect to the transaction, no Event of Default under this 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

 

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(iii) an Officers’ Certificate and an Opinion of Counsel shall have been delivered to the Trustee, each stating that such transaction and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture comply with this Indenture and that all conditions precedent provided for relating to such transaction have been complied with.

 

Section 804.

SUBSIDIARY GUARANTOR SUCCESSOR TO BE SUBSTITUTED.

In the event of any transaction described in and complying with the conditions listed in Section 803 of this Indenture in which such Subsidiary Guarantor or Future Guarantor, as the case may be, is not the continuing entity, the successor Person formed or remaining shall succeed, and be substituted for, and may exercise every right and power of such Subsidiary Guarantor or Future Guarantor, as the case may be, and (except in the case of a lease) such Subsidiary Guarantor or Future Guarantor, as the case may be, shall be discharged from its obligations under this Indenture and its Guarantee.

 

Section 805.

EXCEPTIONS TO RESTRICTIONS.

The restrictions in Section 801 and Section 803 hereof shall not apply to:

(i) a merger, consolidation, sale, assignment, conveyance, transfer, lease or other disposition of assets between or among any Parent Guarantor, the Issuer or any Subsidiary Guarantor; provided, however that this clause (i) shall not apply to any merger, consolidation, sale, assignment, conveyance, transfer, lease or other disposition of assets involving the Issuer where the Issuer is not the continuing entity or the successor entity; or

(ii) a merger between the General Partner or any of its Subsidiaries, respectively, and an affiliate of the General Partner or such Subsidiary incorporated or formed solely for the purpose of reincorporating or reorganizing the General Partner or such Subsidiary in another state of the United States.

ARTICLE IX

SUPPLEMENTAL INDENTURES

 

Section 901.

SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS OF SECURITIES.

The Issuer, the Guarantors and the Trustee may from time to time, and at any time, enter into an indenture or indentures supplemental hereto without the consent of any Holder of the Securities for any of the following purposes:

(1) to cure any ambiguity, defect or inconsistency;

(2) to comply with the requirements of the Commission in order to effect or maintain the qualification of the Indenture under the Trust Indenture Act;

(3) to evidence and provide for the acceptance of appointment by a successor trustee;

(4) to conform the terms of this Indenture, the Securities and/or the Guarantee to any provision or other description of the Securities or Guarantee, as the case may be, contained in the applicable prospectus and any applicable prospectus supplement, term sheet or free writing prospectus;

(5) to provide for the assumption by a successor corporation, partnership, trust or limited liability company of the Issuer’s or any Guarantor’s obligations under this Indenture and the Securities and the Guarantees, as applicable, in each case in compliance with the provisions thereof;

(6) to establish the form or terms of Securities of any series as permitted by Section 201 or 301;

(7) to comply with the rules of any applicable securities depository;

(8) to make any change that would provide any additional rights or benefits to the Holders of Securities of all or any series (including to secure the Securities of such series, add Guarantees with respect thereto, add to the Issuer’s covenants or Events of Default with respect to the Securities of one or more series, or surrender any right or power conferred upon the Issuer or the Guarantors) or that does not adversely affect the legal rights hereunder of any Holder of the Securities of any series in any respect; or

 

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(9) supplement any provision of this Indenture as shall be necessary to permit or facilitate the defeasance or discharge of the Securities of all or any series in accordance with this Indenture; provided that such action shall not adversely affect the interests of any Holder of the Securities of any series in any respect.

Upon the written request of the Issuer, accompanied by Board Resolutions authorizing the execution of any supplemental indenture, the Trustee is hereby authorized to join with the Issuer and the Guarantors 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 this Indenture or otherwise.

Any supplemental indenture authorized by the provisions of this Section 901 may be executed by the Issuer, the Guarantors and the Trustee without the consent of the Holders of any of the Securities at the time Outstanding except to the extent covered in any of clauses (1) to (9) of Section 902.

 

Section 902.

SUPPLEMENTAL INDENTURE WITH CONSENT OF HOLDERS OF SECURITIES.

With the consent of the Holders of a majority in aggregate principal amount of all Outstanding Securities of each series affected by such supplemental indenture voting as a single class, the Issuer, the Guarantors 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 this Indenture or any supplemental indenture or modifying in any manner the rights of the Holders of the Securities; provided that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected by such supplemental indenture:

(1) reduce the percentage of Outstanding Securities necessary to modify or amend this Indenture, to waive compliance with certain provisions of this Indenture or certain defaults and their consequences provided in this Indenture, or to reduce the quorum or change voting requirements set forth in this Indenture;

(2) reduce the rate (or change the manner of calculating the rate) of, or change or have the effect of changing the time for payment of Interest, including Defaulted Interest, on any Security;

(3) reduce the principal amount of, or change or have the effect of changing the Stated Maturity of any Security, or reduce the principal of any Original Issue Discount Security that would be due and payable upon acceleration of the Maturity Date or the amount thereof provable in bankruptcy;

(4) change the timing on which any Security may be subject to redemption or repurchase or reduce (or change the manner for calculating) the Redemption Price or repurchase price upon repayment pursuant to Article 13 therefor;

(5) make any Security payable in a currency other than that stated in such Security or change the Place of Payment of any Security from that stated in such Security or in this Indenture;

(6) make any change in provisions of this Indenture protecting the right of each Holder of a Security to receive payment of principal of (and premium, if any) and Interest on such Security on or after the due date thereof or to bring suit to enforce such payment, or permitting Holders holding a majority in principal amount of the Outstanding Securities to waive defaults or Events of Default;

(7) make any change to or modify in any manner adverse to the Holders of any Security the terms and conditions of the obligations of the Guarantors under its Guarantees;

(8) make any change to or modify the ranking of any Security that would adversely affect the Holders of such Security; or

(9) modify any of this Section 902 or any of the second paragraph of Section 507, except to increase the required percentage to effect the action or to provide that certain other provisions may not be modified or waived without the consent of the Holders of each of the Outstanding Securities affected thereby.

 

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Upon the written request of the Issuer, accompanied by Board Resolutions authorizing the execution of any supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Holders of Securities as aforesaid, the Trustee shall join with the Issuer and the Guarantors in the execution of such supplemental indenture unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.

It shall not be necessary for the consent of the Holders of Securities under this Section 902 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.

 

Section 903.

EFFECT OF SUPPLEMENTAL INDENTURE.

Any supplemental indenture executed pursuant to the provisions of this Article 9 shall comply with the Trust Indenture Act, as then in effect, provided that this Section 903 shall not require such supplemental indenture or the Trustee to be qualified under the Trust Indenture Act prior to the time, if ever, such qualification is in fact required under the terms of the Trust Indenture Act or this Indenture has been qualified under the Trust Indenture Act, nor shall it constitute any admission or acknowledgment by any party to such supplemental indenture that any such qualification is required prior to the time, if ever, such qualification is in fact required under the terms of the Trust Indenture Act or this Indenture has been qualified under the Trust Indenture Act. Upon the execution of any supplemental indenture pursuant to the provisions of this Article 9, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitation of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer, the Guarantors and the Holders of Securities shall thereafter be determined, exercised and enforced hereunder, subject in all respects to such modifications and amendments and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.

 

Section 904.

NOTATION ON SECURITIES.

Securities authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 9 may bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Issuer or the Trustee shall so determine, new Securities and/or Guarantee so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any such supplemental indenture may, at the Issuer’s expense, be prepared and executed by the Issuer and/or the Guarantors, as applicable, authenticated by the Trustee (or an Authenticating Agent duly appointed by the Trustee pursuant to Section 611) and delivered in exchange for the Securities then Outstanding, upon surrender of such Securities then Outstanding.

 

Section 905.

EVIDENCE OF COMPLIANCE OF SUPPLEMENTAL INDENTURE TO BE FURNISHED TO TRUSTEE.

Prior to entering into any supplemental indenture pursuant to this Article 9, the Trustee shall be provided with an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant hereto complies with the requirements of this Article 9 and is otherwise authorized or permitted by this Indenture.

ARTICLE X

COVENANTS

 

Section 1001.

PAYMENT OF PRINCIPAL, PREMIUM, IF ANY, AND INTEREST.

The Issuer covenants and agrees for the benefit of the Holders of each series of Securities that it will duly and punctually pay or cause to be paid when due the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) payable in respect of the Securities of that series in accordance with the terms of such series of Securities and this Indenture.

 

Section 1002.

MAINTENANCE OF OFFICE OR AGENCY.

The Issuer shall maintain in each Place of Payment for such series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuer and the Guarantors in respect of the Securities of that series and this Indenture may be served. The Issuer will give prompt written notice to the Trustee of the location, and any change in the location, of each such office or agency. If at any time the

 

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Issuer shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office, and the Issuer hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and demands.

The Issuer may from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all of such purposes, and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any series for such purposes. The Issuer will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise specified with respect to any Securities pursuant to Section 301 with respect to a series of Securities, the Issuer hereby designates as a Place of Payment for each series of Securities the Corporate Trust Office, and initially appoints the Trustee at its Corporate Trust Office as Paying Agent and as its agent to receive all such presentations, surrenders, notices and demands.

Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series (1) are denominated in a Foreign Currency or (2) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the Issuer will maintain with respect to each such series of Securities, or as so required, at least one exchange rate agent.

So long as the Trustee is the Securities Registrar, the Trustee agrees to mail, or cause to be mailed, the notices set forth in Section 608(6). If co-registrars have been appointed in accordance with this Section, the Trustee shall mail such notices only to the Issuer and the Holders of Outstanding Securities it can identify from its records.

 

Section 1003.

MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.

If the Issuer, any Guarantor or an Affiliate of the Issuer or any Guarantor shall at any time act as its own Paying Agent with respect to any series of any Securities, it will, on or before each due date of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) sufficient to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.

Whenever the Issuer shall have one or more Paying Agents for any series of Securities, it will, on or before each due date of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) on any Securities of that series, deposit with a Paying Agent a sum (in the currency or currencies, currency unit or units or composite currency or currencies described in the preceding paragraph) sufficient to pay the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) and (unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee of its action or failure so to act.

The Issuer will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 1003, that such Paying Agent will

(1) hold all sums held by it for the payment of principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) on Securities in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;

(2) give the Trustee notice of any default by the Issuer or any Guarantor (or any other obligor upon the Securities) in the making of any such payment of principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) on the Securities of that series; and

(3) at any time during the continuance of any such default upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.

 

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The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by delivery of an Issuer Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Issuer, the Guarantors or any Affiliate of the Issuer or the Guarantors or such Paying Agent, such sums to be held by the Trustee upon the same terms as those upon which such sums were held by the Issuer, the Guarantors, such Affiliate or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.

Except as otherwise provided in the Securities of any series, any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, the Guarantors or any Affiliate of the Issuer or the Guarantors, in trust for the payment of the principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) in respect of, any Security of any such series and remaining unclaimed for two years after such principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) have become due and payable shall be paid to the Issuer upon Issuer Request or (if then held by the Issuer, the Guarantors or any Affiliate of the Issuer or the Guarantors) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Issuer and the Guarantors for payment of such principal of (and premium, if any) and Interest (including the Redemption Price upon redemption pursuant to Article 11 and the repurchase price upon repayment pursuant to Article 13) on such Security, without interest thereon, and all liability of the Trustee or such Paying Agent with respect to such trust money, as trustee thereof, and all liability of the Issuer, the Guarantors or an Affiliate of the Issuer or the Guarantors, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Issuer cause to be mailed to Holders of Registered Securities, or both, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such notice, any unclaimed balance of such money then remaining will be repaid to the Issuer and thereafter such Holders will be required to seek the related payment from the Issuer or any Guarantor as a general unsecured creditor.

 

Section 1004.

EXISTENCE.

Except as permitted under Article 8, the Issuer and each Guarantor will do or cause to be done all things necessary to preserve and keep in full force and effect the Issuer’s and each Guarantor’s existence, rights (charter and statutory) and franchises. However, neither the Issuer nor any Guarantor will be required to preserve any right or franchise if the Board of Directors of the General Partner (or any duly authorized committee of that Board of Directors of the General Partner), as the case may be, determines that the preservation of the right or franchise is no longer desirable in the conduct of the Issuer or such Guarantor’s business.

 

Section 1005.

MAINTENANCE OF PROPERTIES.

Each of the Issuer and the Guarantors will cause all of its material properties used or useful in the conduct of its business or any of its Subsidiaries’ businesses to be maintained and kept in good condition, repair and working order, normal wear and tear, casualty and condemnation excepted, and supplied with all necessary equipment and cause all necessary repairs, renewals, replacements, betterments and improvements to be made, all as in the General Partner’s judgment may be necessary in order for it to at all times properly and advantageously conduct its business carried on in connection with such properties. Neither the Issuer nor any Guarantor will be prevented from (1) removing permanently any property that has been condemned or suffered a casualty loss, if, in the General Partner’s reasonable judgment, it is in their best interest, (2) discontinuing maintenance or operation of any property if, in the General Partner’s reasonable judgment, it is in their best interest and is not disadvantageous in any material respect to the Holders of the Securities, or (3) selling or otherwise disposing for value properties in the ordinary course of business.

 

Section 1006.

INSURANCE.

Each of the Issuer and the Guarantors will, and will cause each of their Subsidiaries to, keep in force upon all of its and each of its Subsidiaries’ properties and operations insurance policies carried with responsible companies in such amounts and covering all such risks as is customary in the industry in which the Issuer, the Guarantors and each of their Subsidiaries do business in accordance with prevailing market conditions and availability.

 

Section 1007.

PAYMENT OF TAXES AND OTHER CLAIMS.

The Issuer and each Guarantor will each pay or discharge or cause to be paid or discharged before it becomes delinquent:

(1) all material taxes, assessments and governmental charges levied or imposed on it or any of its Subsidiaries or on its or any such Subsidiary’s income, profits or property; and

 

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(2) all material lawful claims for labor, materials and supplies that, if unpaid, might by law become a Lien upon its property or the property of any of its Subsidiaries.

However, neither the Issuer nor any Guarantors will be required to pay or discharge or cause to be paid or discharged any tax, assessment, charge or claim the amount, applicability or validity of which is being contested in good faith.

 

Section 1008.

APPOINTMENTS TO FILL VACANCIES IN TRUSTEE’S OFFICE.

The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, upon the terms and conditions and otherwise as provided in Section 608, a Trustee, so that there shall at all times be a Trustee hereunder.

 

Section 1009.

STATEMENT AS TO COMPLIANCE.

The Issuer and the Guarantors will deliver to the Trustee, within 120 days after the end of each fiscal year, a brief certificate from the principal executive officer, principal financial officer or principal accounting officer of the General Partner as to his or her knowledge of the Issuer’s and the Guarantors’ compliance with all conditions and covenants under the Indenture and, in the event of any noncompliance, specifying such noncompliance and the nature and status thereof. For purposes of this Section 1009, such compliance shall be determined without regard to any period of grace or requirement of notice under the Indenture.

Within 30 days after becoming aware of the occurrence of any Event of Default, or any default that with notice or the lapse of time, or both, would be an Event of Default, the Issuer shall be required to deliver to the Trustee an Officers’ Certificate setting forth the details of such Event of Default or default, as the case may be, its status and the action that the Issuer is taking or proposes to take, if any, in respect thereof .

Any notice required to be given under this Section 1009 shall be delivered to a Responsible Officer of the Trustee at its Corporate Trust Office.

 

Section 1010.

ADDITIONAL AMOUNTS.

If any Securities of a series provide for the payment of Additional Amounts, the Issuer will pay to the Holder of any Security of such series Additional Amounts as may be specified as contemplated by Section 301. Whenever in this Indenture there is mentioned the payment of the principal of or any premium or interest on, or in respect of, any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established pursuant to Section 301 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.

Except as otherwise specified as contemplated by Section 301, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to the Maturity Date, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the Issuer will furnish the Trustee and the Issuer’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal of or any premium or Interest on the Securities of that series shall be made to Holders of Securities of that series who are not United States Persons without withholding for or on account of any tax, assessment or other governmental charge described in the Securities of the series. If any such withholding shall be required, then such Officers’ Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities of that series and the Issuer will pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. If the Trustee or any Paying Agent, as the case may be, shall not so receive the above-mentioned Officers’ Certificate, then the Trustee or such Paying Agent shall be entitled (1) to assume that no such withholding or deduction is required with respect to any payment of principal, premium or Interest with respect to any Securities of a series until it shall have received a certificate advising otherwise and (2) to make all payments of principal, premium and Interest with respect to the Securities of a series without withholding or deductions until otherwise advised. The Issuer covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them pursuant to this Section 1010 or in reliance on any Officers’ Certificate furnished pursuant to this Section 1010 or in reliance on the Issuer’s not furnishing such an Officers’ Certificate.

 

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Section 1011.

WAIVER OF CERTAIN COVENANTS.

The Issuer and the Guarantors may omit in any particular instance to comply with any term, provision or condition set forth in Sections 1004 to 1007, inclusive, with respect to the Securities of any series and, if expressly provided pursuant to Section 301(16), any additional covenants applicable to the Securities of such series if, before or after the time for such compliance the Holders of a majority in principal amount of all Outstanding Securities of such series, by act of such Holders, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Issuer and the Guarantors and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.

 

Section 1012.

WAIVER OF USURY, STAY OR EXTENSION LAWS.

The Issuer and each Guarantor each covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture, the Securities or the Guarantees; and the Issuer and the Guarantors each (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.

 

Section 1013.

FUTURE GUARANTORS.

Except as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 301, following the original issue date of any series of Securities, the General Partner will cause each of its direct and indirect Subsidiaries (other than the Issuer, the Limited Partner and the Subsidiary Guarantors), if such Subsidiary, directly or indirectly, becomes a co-borrower, guarantor or other obligor under the Primary Credit Facility, to guarantee the Issuer’s obligations under such series of Securities on a full and unconditional basis, jointly and severally with the other Guarantors, including the due and punctual payment of principal of, and premium, if any, and Interest on, such series of Securities, whether at Stated Maturity, upon acceleration, upon redemption or otherwise, by executing and delivering a supplemental indenture that provides for the Guarantee within thirty calendar days of becoming so obligated in accordance with this Indenture, at which time all provisions of this Indenture, such series of Securities and the Guarantees applicable to a Guarantor shall become applicable to such Future Guarantor. Such supplemental indenture in respect of any Guarantee provided by any Foreign Subsidiary shall be subject to legal and regulatory requirements and restrictions applicable to such Foreign Subsidiary.

 

Section 1014.

PROVISION OF FINANCIAL INFORMATION.

So long as any Securities are Outstanding, if at any time (1) the General Partner is not subject to the periodic reporting requirements of the Exchange Act for any reason or (2) the Issuer and the Guarantors (other than the General Partner) are no longer permitted to include summarized financial information in the General Partner’s filings under the Exchange Act and are not subject to the periodic reporting requirements of the Exchange Act, the Issuer and such Guarantors shall, at their option, either (i) post on a publicly available website; (ii) post on IntraLinks or any comparable password protected online data system requiring user identification and a confidentiality acknowledgement (a “Confidential Datasite”); or (iii) deliver to the Trustee and the Holders of the Securities of any series then Outstanding, in each case within 15 days of the filing date that would be applicable to a non-accelerated filer at that time pursuant to applicable Commission rules and regulations, the quarterly and audited annual financial statements and accompanying “Management’s Discussion and Analysis of Financial Condition and Results of Operations” that would have been required to be contained in annual reports on Form 10-K and quarterly reports on Form 10-Q, respectively, had the Issuer and such Guarantors been subject to such Exchange Act periodic reporting requirements. The Trustee shall have no obligation to determine whether or not such reports, information, statements or documents have been filed, posted or delivered. Delivery of such reports, information, statements and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute notice of any information contained therein or determinable from information contained therein, including compliance with any of the covenants contained in this Indenture as to which the Trustee is entitled to rely exclusively on Officers’ Certificates. If the Issuer elects to furnish such reports via a Confidential Datasite, access to the Confidential Datasite shall be provided upon request to Holders and beneficial owners of, and bona fide potential investors in, the Securities of such series.

Reports, information and documents filed with the Commission via the EDGAR system shall be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of this covenant; provided, however, that the Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed via EDGAR.

 

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ARTICLE XI

REDEMPTION OF SECURITIES

 

Section 1101.

APPLICABILITY OF ARTICLE.

Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article 11.

 

Section 1102.

ELECTION TO REDEEM; NOTICE TO TRUSTEE.

In case of any redemption at the election of the Issuer of the Securities of any series, the Issuer shall, at least five (5) days prior to the giving of the notice of redemption in Section 1104 (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the principal amount of Securities of such series to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Issuer shall furnish the Trustee with an Officers’ Certificate evidencing compliance with such restriction.

 

Section 1103.

SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.

If less than all the Securities of any series originally issued on the same day with the same terms are to be redeemed, the particular Securities to be redeemed shall be selected by such method as the Trustee shall deem fair and appropriate and which may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series; provided, however, that so long as DTC or its nominee is the registered owner of a Global Security, such Global Security will be redeemed in accordance with the requirements of DTC.

The Trustee shall promptly notify the Issuer and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.

For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.

 

Section 1104.

NOTICE OF REDEMPTION.

Notice of redemption shall be given in the manner provided in Section 106, not less than 30 days nor more than 60 days prior to the Redemption Date, unless a shorter period is specified by the terms of such series established pursuant to Section 301, to each Holder of Securities to be redeemed, but failure to give such notice in the manner herein provided to the Holder of any Security designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other Security or portion thereof.

Any notice that is mailed to the Holders of Securities in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice.

All notices of redemption shall state:

(1) the Redemption Date;

(2) the Redemption Price and Additional Amounts, if any, payable upon redemption;

(3) if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the principal amount) of the particular Security or Securities to be redeemed;

(4) in case any Security is to be redeemed in part only, that on and after the Redemption Date, upon surrender of such Security, the Holder will receive, without a charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed;

 

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(5) that on the Redemption Date the Redemption Price as provided in Section 1106 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon shall cease to accrue on and after said date;

(6) the Place or Places of Payment where such Securities are to be surrendered for payment of the Redemption Price;

(7) that the redemption is for a sinking fund, if such is the case; and

(8) the CUSIP number of such Securities, if any.

Notice of redemption of Securities to be redeemed at the election of the Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at the expense of the Issuer.

 

Section 1105.

DEPOSIT OF REDEMPTION PRICE.

On or before any Redemption Date, the Issuer shall deposit or cause to be deposited with the Trustee or with a Paying Agent (or, if the Issuer, any Guarantor or any Affiliate of the Issuer or any Guarantor is acting as its own Paying Agent, which it may not do in the case of a sinking fund payment under Article 12, segregate and hold in trust as provided in Section 1003) an amount of money in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) sufficient to pay on the Redemption Date the Redemption Price (which shall include interest unless the Redemption Date shall be an Interest Payment Date) of all the Securities or portions thereof which are to be redeemed on that date.

 

Section 1106.

SECURITIES PAYABLE ON REDEMPTION DATE.

Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at a redemption price therein specified (which shall include principal, premium, if any, and interest to the Redemption Date, collectively, the “Redemption Price”) in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series), and from and after such date (unless the Issuer shall default in the payment of the Redemption Price) such Securities shall, if the same were interest-bearing, cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Issuer at the Redemption Price; provided however that installments of interest on Securities whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 307.

If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal (and premium, if any) and (to the extent lawful) interest shall, until paid, bear interest from the Redemption Date at the rate borne by or provided in, as the case may be, the Security.

 

Section 1107.

SECURITIES REDEEMED IN PART.

Any Security which is to be redeemed only in part (pursuant to the provisions of this Article 11 or of Article 12) shall be surrendered at a Place of Payment therefor (with, if the Issuer or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the Holder thereof or his or her attorney duly authorized in writing) and the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge a new Security or Securities of the same series and identical terms and provisions of any authorized denomination as requested by such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered. If a Global Security is so surrendered, the Issuer shall execute and the Trustee shall authenticate and deliver to the depositary, without service charge, a new Global Security in a denomination equal to and in exchange for the unredeemed portion of the principal of the Global Security so surrendered. Upon any such execution by the Issuer of a new Security or Securities, the Guarantors shall execute a new Guarantee in respect thereof.

 

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ARTICLE XII

SINKING FUNDS

 

Section 1201.

APPLICABILITY OF ARTICLE.

The provisions of this Article 12 shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 301 for Securities of such series.

The minimum amount of any sinking fund payment provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of such Securities of any series is herein referred to as an “optional sinking fund payment.” If provided for by the terms of any Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.

 

Section 1202.

SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.

The Issuer may, in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of a series, (1) deliver Outstanding Securities of such series (other than any previously called for redemption) and (2) apply as a credit Securities of such series which have been redeemed either at the election of the Issuer pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, as provided for by the terms of such Securities, or which have otherwise been acquired by the Issuer; provided, however, that such Securities so delivered or applied as a credit have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the applicable Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.

 

Section 1203.

REDEMPTION OF SECURITIES FOR SINKING FUND.

Not less than 60 days prior to each sinking fund payment date for Securities of any series, the Issuer will deliver to the Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will also deliver to the Trustee any Securities to be so delivered and credited. If such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Issuer shall thereupon be obligated to pay the amount therein specified. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103 and cause notice of the redemption thereof to be given in the name of and at the expense of the Issuer in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 1106 and 1107.

ARTICLE XIII

REPAYMENT AT THE OPTION OF HOLDERS

 

Section 1301.

APPLICABILITY OF ARTICLE.

Repayment of Securities of any series before their Stated Maturity at the option of Holders thereof shall be made in accordance with the applicable terms, if any, of such Securities and (except as otherwise specified by the terms of such series established pursuant to Section 301) in accordance with this Article 13.

 

Section 1302.

REPAYMENT OF SECURITIES.

Securities of any series subject to repayment in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid at a price equal to the principal amount thereof, together with Interest, if any, thereon accrued to the Repayment Date specified in or pursuant to the terms of such Securities. The Issuer covenants that on or prior to the Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if the Issuer, any Guarantor or any Affiliate of the Issuer or any Guarantor is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003) an amount of money in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) sufficient to pay the principal (or, if so provided by the terms of the Securities of such series, a percentage of the principal) of, and premium, if any, and (except if the Repayment Date shall be an Interest Payment Date) accrued Interest on, all the Securities or portions thereof, as the case may be, to be repaid on such date.

 

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Section 1303.

EXERCISE OF OPTION.

Securities of any series subject to repayment at the option of the Holders thereof will contain an “Option to Elect Repayment” form on the reverse of such Securities. The principal amount of any Security providing for repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the Holder thereof, exercise or the repayment option by the Holder shall be irrevocable unless waived by the Issuer.

 

Section 1304.

WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND PAYABLE.

If Securities of any series providing for repayment at the option of the Holders thereof shall have been surrendered as provided in this Article 13 and as provided by or pursuant to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and payable and shall be paid by the Issuer on the Repayment Date therein specified, and on and after such Repayment Date (unless the Issuer shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing, cease to bear Interest. Upon surrender of any such Security for repayment in accordance with such provisions, the principal amount of such Security so to be repaid shall be paid by the Issuer, together with any premium and accrued Interest, if any, to the Repayment Date; provided however that, installments of Interest, if any, whose Stated Maturity is on or prior to the Repayment Date shall be payable (but without Interest thereon, unless the Issuer shall default in the payment thereof) to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 307.

If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender thereof, such principal amount and any premium and (to the extent lawful) Interest, if any, thereon accrued to such Repayment Date shall, until paid, bear interest from the Repayment Date at the rate of Interest or Yield to Maturity (in the case of Original Issue Discount Securities) borne by or provided in, as the case may be, such Security.

 

Section 1305.

SECURITIES REPAID IN PART.

Upon surrender of any Security which is to be repaid in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to the Holder of such Security, without service charge and at the expense of the Issuer, a new Security or Securities of the same series, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange for the portion of the principal of such Security so surrendered which is not to be repaid. If a Global Security is so surrendered, the Issuer shall execute and the Trustee shall authenticate and deliver to the depositary, without service charge, a new Global Security in a denomination equal to and in exchange for the unrepaid portion of the principal of the Global Security so surrendered. Upon any such execution by the Issuer of a new Security or Securities, the Guarantors shall execute a new Guarantee in respect thereof.

ARTICLE XIV

MEETINGS OF HOLDERS OF SECURITIES

 

Section 1401.

PURPOSE FOR WHICH MEETINGS MAY BE CALLED.

A meeting of Holders of Securities of any particular series may be called at any time and from time to time pursuant to this Article 14 to make, give or take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.

 

Section 1402.

CALL, NOTICE AND PLACE OF MEETINGS.

(1) The Trustee may at any time call a meeting of Holders of Securities of any particular series for any purpose specified in Section 1401, to be held at such time and at such place as the Trustee shall determine. Notice of every meeting of Holders of Securities of any particular series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 106, not less than 20 nor more than 180 days prior to the date fixed for the meeting.

(2) In case at any time the Issuer or the General Partner, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding Securities of any particular series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1401, by written request setting forth in reasonable detail

 

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the action proposed to be taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 20 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Issuer or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place for such meeting and may call such meeting for such purposes by giving notice thereof as provided in clause (1) of this Section 1402.

 

Section 1403.

PERSONS ENTITLED TO VOTE AT MEETINGS.

To be entitled to vote at any meeting of Holders of Securities of any particular series, a Person shall be (1) a Holder of one or more Outstanding Securities of such series or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities of any particular series 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 Guarantors and its counsel and any representatives of the Issuer and its counsel.

 

Section 1404.

QUORUM; ACTION.

The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities of such series; provided, however, that if any action is to be taken at such meeting with respect to a request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be given by the Holders of not less than a specified percentage in aggregate principal amount of the Outstanding Securities of a series, the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum with respect to such matter. In the absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at the reconvening of any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days; at the reconvening of any meeting adjourned or further adjourned for lack of a quorum, the persons entitled to vote a majority in aggregate principal amount of the then Outstanding Securities of such series shall constitute a quorum for the taking of any action set forth in the notice of the original meeting; provided, however, that if any action is to be taken at such reconvened meeting with respect to a request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be given by the Holders of not less than a specified percentage in aggregate principal amount of the Outstanding Securities of a series, the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum with respect to such matter. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1402(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.

Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; provided, however, that, except as limited by the proviso to Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities of that series.

Any resolution passed or decision taken at any meeting of Holders of Securities of particular any series duly held in accordance with this Section 1404 shall be binding on all the Holders of Securities of such series, whether or not present or represented at the meeting.

Notwithstanding the foregoing provisions of this Section 1404, if any action is to be taken at a meeting of Holders of Securities of any particular series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders of such series and one or more additional series:

(1) there shall be no minimum quorum requirement for such meeting and

(2) the aggregate principal amount of the Outstanding Securities of all such series that are entitled to vote in favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.

 

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Section 1405.

DETERMINATION OF VOTING RIGHTS, CONDUCT AND ADJOURNMENT OF MEETINGS.

(1) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspector of elections, 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. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof specified in Section 104 or other proof.

(2) The Trustee shall, by an instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Issuer or by Holders of Securities as provided in Section 1402(2), in which case the Issuer or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting.

(3) At any meeting each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal amount of the Outstanding Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.

(4) Any meeting of Holders of Securities of any particular series duly called pursuant to Section 1402 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 Securities of such series represented at the meeting, and the meeting may be held as so adjourned without further notice.

 

Section 1406.

COUNTING VOTES AND RECORDING ACTION OF MEETINGS.

The vote upon any resolution submitted to any meeting of Holders of Securities of any particular series shall be by written ballots on which shall be subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any particular series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the fact, setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1402 and, if applicable, Section 1404. 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 Issuer and another to the Trustee to be preserved by the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.

ARTICLE XV

THE GUARANTEES

 

Section 1501.

GUARANTEE.

By its execution of the Notation of Guarantee on the applicable Securities, each Guarantor acknowledges and agrees that it receives substantial benefits from the Issuer and that such Guarantor is providing its Guarantee for good and valuable consideration, including, without limitation, such substantial benefits. Accordingly, each Guarantor hereby fully, unconditionally and irrevocably guarantees to each Holder of Securities of each series that are guaranteed by such Guarantor in accordance with Section 301, and authenticated and delivered by the Trustee and its successors and assigns that: (i) the principal of and premium (including the Redemption Price upon redemption pursuant to Article 11 and repayment price upon repayment pursuant to Article 13) and Interest on Securities of such series in the currency, currency unit or composite currency in which it is payable shall be duly and punctually paid in full when due, whether at the Maturity Date, upon acceleration, upon redemption or repayment, or otherwise, and Interest on

 

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overdue principal and premium and (to the extent permitted by law) Interest on any overdue Interest, if any, on Securities of such series and all other obligations of the Issuer to the Holders of Securities of such series or the Trustee hereunder or under the Securities of such series (including fees, expenses or other) shall be promptly paid in full or performed, all in accordance with the terms hereof; and (ii) in case of any extension of time of payment or renewal of any Securities of such series or any of such other obligations, the same shall be promptly paid in full when due or performed in accordance with the terms of the extension or renewal, whether at the Maturity Date, by acceleration, call for redemption, notice of repayment exercise or otherwise, subject, however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 1503 hereof (collectively, the “Guarantee Obligations”).

Each Guarantor hereby agrees that it is a primary obligor of the Guarantee Obligations, and not merely a surety, and its Guarantee hereunder shall be irrevocable and unconditional, irrespective of the validity, regularity, binding effect or enforceability of the Securities of each series that are guaranteed by such Guarantor, or this Indenture, the absence of any action to enforce the same, any waiver or consent by any Holder of the Securities of such series with respect to any thereof, the entry of any judgment against the Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor. Each Guarantor hereby waives and relinquishes: (a) any right to require the Trustee or the Holders of Securities or such series (each, a “Benefited Party”) to proceed against the Issuer or any other Person or to proceed against or exhaust any security held by a Benefited Party at any time or to pursue any other remedy in any Benefited Party’s power before proceeding against such Guarantor; (b) any defense that may arise by reason of the incapacity, lack of authority, death or disability of any other Person or Persons or the failure of a Benefited Party to file or enforce a claim against the estate (in administration, bankruptcy or any other proceeding) of any other Person or Persons; (c) demand, protest, presentment and notice of any kind, including but not limited to notice of the existence, creation or incurring of any new or additional indebtedness or obligation or of any action or non-action on the part of any Guarantor, the Issuer, any Benefited Party, any creditor of any Guarantor or the Issuer or on the part of any other Person whomsoever in connection with any obligations the performance of which are hereby guaranteed; (d) any defense based upon an election of remedies by a Benefited Party, including but not limited to an election to proceed against such Guarantor for reimbursement; (e) any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal; (f) any defense arising because of a Benefited Party’s election, in any proceeding instituted under the Bankruptcy Law, of the application of Section 1111(b)(2) of the Bankruptcy Code; and (g) any defense based on any borrowing or grant of a security interest under Section 364 of the Bankruptcy Code. Each Guarantor hereby agrees that the Guarantee is a guarantee of payment and not of collection and hereby covenants that, except as otherwise provided therein, the Guarantee shall not be discharged except by payment in full of all Guarantee Obligations, including the principal of and premium, if any, and Interest on the Securities of such series and all other costs provided for under this Indenture or as provided in Article 6.

If any Holder or the Trustee is required by any court or otherwise to return to either the Issuer or any Guarantor, or any trustee or similar official acting in relation to either the Issuer or any Guarantor, any amount paid by the Issuer or any Guarantor to the Trustee or such Holder, the Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect. Each Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders in respect of any Guarantee Obligations hereby until payment in full of all Guarantee Obligations. Each Guarantor agrees that, as between it, on the one hand, and the Holders of Securities of such series that are guaranteed by such Guarantor and the Trustee, on the other hand, (x) the maturity of the Guarantee Obligations may be accelerated as provided in Article 5 hereof for the purposes hereof, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the Guarantee Obligations, and (y) in the event of any acceleration of such Guarantee Obligations as provided in Article 5 hereof, such Guarantee Obligations (whether or not due and payable) shall forthwith become due and payable by such Guarantor for the purpose of the Guarantee.

 

Section 1502.

EXECUTION AND DELIVERY OF NOTATION OF GUARANTEE.

To evidence the Guarantee set forth in Section 1501 hereof, each Guarantor agrees that a Notation of Guarantee shall be affixed on each Security of such series that is guaranteed by such Guarantor, and authenticated and delivered by the Trustee, and that a supplemental indenture shall be executed on behalf of such Guarantor by an Officer of such Guarantor, and each Guarantee made applicable to Securities pursuant to Section 301 shall be deemed to be duly executed by such Guarantor by virtue of the execution of the a supplemental indenture by an Officer of such Guarantor and the execution of the Notation of Guarantee pursuant to Section 303 with such Notation of Guarantee being affixed on each Security of such series that is guaranteed by such Guarantor.

If an Officer whose facsimile signature is on a Security of such series or a Notation of Guarantee no longer holds that office at the time the Trustee authenticates such Security on which a Notation of Guarantee is affixed, the Guarantee shall be valid, nevertheless.

The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Guarantee relating to such Security set forth in this Indenture on behalf of the applicable Guarantor.

 

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The obligations of any Guarantor under its Guarantee will be a direct, unsecured and unsubordinated obligation of such Guarantor and such Guarantor undertakes that its obligations under such Guarantee will rank pari passu with all other present or future direct, unsecured and unsubordinated obligations of such Guarantor.

 

Section 1503.

LIMITATION OF GUARANTOR’S LIABILITY, CERTAIN BANKRUPTCY EVENTS.

(1) Each Guarantor, and by its acceptance hereof each Holder of Securities of each series that are guaranteed by such Guarantor, hereby confirms that it is the intention of all such parties that the Guarantee Obligations of such Guarantor pursuant to its Guarantee not constitute a fraudulent transfer or conveyance for purposes of any Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law or any comparable provision of applicable foreign law. To effectuate the foregoing intention, the Holders and each Guarantor hereby irrevocably agree that the Guarantee Obligations of such Guarantor under this Article 15 shall be limited to the maximum amount as shall, after giving effect to all other contingent and fixed liabilities of such Guarantor, result in the Guarantee Obligations of such Guarantor under the Guarantee not constituting a fraudulent transfer or conveyance.

(2) Each Guarantor hereby covenants and agrees, to the fullest extent that it may do so under applicable law, that in the event of the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Issuer, such Guarantor shall not file (or join in any filing of), or otherwise seek to participate in the filing of, any motion or request seeking to stay or to prohibit (even temporarily) execution on the Guarantee and hereby waives and agrees not to take the benefit of any such stay of execution, whether under Section 362 or 105 of the Bankruptcy Law or otherwise.

 

Section 1504.

APPLICATION OF CERTAIN TERMS AND PROVISIONS TO THE GUARANTORS.

(1) For purposes of any provision of this Indenture which provides for the delivery by any Guarantor of an Officers’ Certificate and/or an Opinion of Counsel, the definitions of such terms in Section 101 hereof shall apply to such Guarantor as if references therein to the Issuer or the General Partner, as applicable, were references to such Guarantor.

(2) Any request, direction, order or demand which by any provision of this Indenture is to be made by any Guarantor shall be sufficient if evidenced as described in Sections 105 and 106 hereof as if references therein to the Issuer were references to such Guarantor.

(3) Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on any Guarantor may be given or served as described in Section 105 hereof as if references therein to the Issuer were references to such Guarantor.

(4) Upon any demand, request or application by any Guarantor to the Trustee to take any action under this Indenture, such Guarantor shall furnish to the Trustee such certificates and opinions as are required in Section 102 hereof as if all references therein to the Issuer were references to such Guarantor.

 

Section 1505.

RELEASE OF GUARANTEE.

(1) Notwithstanding the provisions of Section 1501 of this Indenture, any Guarantor shall be automatically and unconditionally released from its obligations under this Indenture upon the Issuer’s exercise of its legal defeasance option or if the Issuer’s obligations under this Indenture are discharged, in each case in accordance with the terms of this Indenture.

(2) In addition to Section 1505(1), a Guarantor, other than General Partner, shall be automatically released and relieved from its obligations under its Guarantee and this Indenture and any supplemental indenture in the following circumstances:

(i) such Guarantor is no longer a co-borrower or guarantor or other obligor under the Primary Credit Facility (or which guarantee or other obligation is being simultaneously released or will be immediately released upon the release of such Guarantor from its Guarantee of the Securities of all applicable series); provided that any release of such Guarantor’s Guarantee pursuant to this clause (i) will not limit the obligation of such Guarantor to Guarantee the Securities of all series previously entitled to such Guarantee at any time after such release if such Guarantor, directly or indirectly, is a co-borrower, guarantor or other obligor under the Primary Credit Facility;

 

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(ii) such Guarantor consolidates or merges with or into or transfers all of its properties or assets to the Issuer, the General Partner or another Guarantor, and as a result of, or in connection with, such transaction such Guarantor dissolves or otherwise ceases to exist;

(iii) upon the sale or other disposition (including by way of consolidation or merger) of the equity interests in such Guarantor; or

(iv) upon the sale or disposition of all or substantially all of the assets of such Guarantor;

provided, however, that in the case of clause (iii) and clause (iv) above, (x) such sale or other disposition is made to a Person other than the General Partner or any of its other Subsidiaries and (y) such sale or disposition is otherwise permitted by this Indenture.

 

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SIGNATURES

IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as of the day and year first above written.

 

AMERICOLD REALTY OPERATING PARTNERSHIP, L.P., as Issuer
By:		AMERICOLD REALTY TRUST, INC., its General Partner
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and Executive Vice President

 

AMERICOLD REALTY TRUST, INC., as Parent Guarantor
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and Executive Vice President

 

AMERICOLD REALTY OPERATIONS, INC., as Parent Guarantor
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and Executive Vice President

 

AMERICOLD AUSTRALIAN HOLDINGS PTY LTD, as Subsidiary Guarantor
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and Executive Vice President

 

ICECAP PROPERTIES NZ LIMITED, as Subsidiary Guarantor
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and Executive Vice President

 

NOVA COLD LOGISTICS ULC, as Subsidiary Guarantor
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and Executive Vice President

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:		/s/ April Bright
		Name: April Bright
		Title: Vice President

 

[Signature Page to Indenture]

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EXHIBIT A

[FORM OF]

NOTATION OF GUARANTEE

Each Guarantor signing below has fully, unconditionally and absolutely guaranteed, to the extent set forth in the Indenture (as defined below) and subject to the provisions in the Indenture, the due and punctual payment of the principal of, premium, if any, and interest on the Securities to which this notation is affixed and all other amounts due and payable under the Indenture and the Securities to which this notation is affixed by the Issuer.

The obligations of such Guarantor to the Holders of Securities to which this notation is affixed and to the Trustee pursuant to the Guarantee and the Indenture are expressly set forth in Article XV of the Indenture and reference is hereby made to the Indenture for the precise terms of the Guarantee.

Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Indenture, dated as of September 12, 2024 as supplemented by the _______ Supplemental Indenture, dated as of _______, 20__ (together, the “Indenture”), by and among the Issuer, the Guarantors named therein, and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”).

 

Date:				[NAME OF GUARANTOR(S)]
				By:
						Name:
						Title:

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EXHIBIT B

FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR

AND CLEARSTREAM S.A. IN CONNECTION WITH THE EXCHANGE OF A PORTION OF A

TEMPORARY GLOBAL SECURITY OR TO

OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE

CERTIFICATE

[Insert title or sufficient description of Securities to be delivered]

This is to certify that, based solely on written certifications that we have received in writing, by tested telex or by electronic transmission from each of the persons appearing in our records as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”) substantially in the form attached hereto, as of the date hereof, [US$] principal amount of the above-captioned Securities is owned by (i) person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its source (“United States Person(s)”), (ii) United States Person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in United States Treasury Regulations Section 1.165-12(c)(1)(v), are herein referred to as “financial institutions”) purchasing for their own account or for resale or (b) United States Person(s) who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that we may advise Americold Realty Operating Partnership, L.P. or its agent that such financial institution will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) United States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions described in clause (iii) (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States Person or to a person within the United States or its possessions.

As used herein, “United States” means the United States of America (including the states and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.

We further certify that (i) we are not making available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary Global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest) are no longer true and cannot be relied upon as of the date hereof.

We understand that this certification is required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.

Dated:

[To be dated no earlier than the Exchange Date or the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable]

 

[Euroclear Bank SA/NV,] as Operator of the Euroclear System [Clearstream Banking, S.A.]
By:

Exhibit 4.2

Execution Version

 

 

AMERICOLD REALTY OPERATING PARTNERSHIP, L.P., AS ISSUER

AMERICOLD REALTY TRUST, INC., AS A PARENT GUARANTOR

AMERICOLD REALTY OPERATIONS, INC., AS A PARENT GUARANTOR

AMERICOLD AUSTRALIAN HOLDINGS PTY LTD, AS SUBSIDIARY GUARANTOR

ICECAP PROPERTIES NZ LIMITED, AS SUBSIDIARY GUARANTOR

NOVA COLD LOGISTICS ULC, AS SUBSIDIARY GUARANTOR

AND

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, AS TRUSTEE

 

 

FIRST SUPPLEMENTAL INDENTURE DATED AS OF SEPTEMBER 12, 2024

TO INDENTURE DATED SEPTEMBER 12, 2024

 

 

$500,000,000

OF

5.409% NOTES DUE 2034

 

 

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CONTENTS

 

ARTICLE I. RELATION TO BASE INDENTURE; DEFINITIONS					3
Section 1.1		Relation to Base Indenture			3
Section 1.2		Definitions			3
ARTICLE II. TERMS OF THE SECURITIES					12
Section 2.1		Title of the Securities			12
Section 2.2		Price			12
Section 2.3		Limitation on Initial Aggregate Principal Amount; Further Issuances			12
Section 2.4		Interest and Interest Rates; Stated Maturity of Notes			12
Section 2.5		Method of Payment			12
Section 2.6		Currency			13
Section 2.7		Additional Notes			13
Section 2.8		Redemption			13
Section 2.9		No Sinking Fund			14
Section 2.10		Security Registrar and Paying Agent			14
Section 2.11		Ranking			14
Section 2.12		Covenant Defeasance and Waiver of Covenants			14
ARTICLE III. FORM OF THE SECURITIES					15
Section 3.1		Global Form			15
Section 3.2		Transfer and Exchange			15
ARTICLE IV. REDEMPTION OF NOTES					19
Section 4.1		Optional Redemption of Notes			19
Section 4.2		Notice of Optional Redemption, Selection of Notes			20
Section 4.3		Payment of Notes Called for Redemption by the Issuer			20
ARTICLE V. GUARANTEE					21
Section 5.1		Note Guarantee			21
Section 5.2		Limitation of Guarantor’s Liability			22
ARTICLE VI. ADDITIONAL COVENANTS					22
Section 6.1		Maintenance of Total Unencumbered Assets			23
Section 6.2		Total Debt Test			23
Section 6.3		Secured Debt Test			23
Section 6.4		Interest Coverage Ratio Test			23
Section 6.5		Additional Amounts			23
Section 6.6		Future Guarantors			24
ARTICLE VII. DEFAULTS AND REMEDIES					25
Section 7.1		Events of Default			25
Section 7.2		Acceleration of Maturity; Rescission and Annulment			26
ARTICLE VIII. AMENDMENTS AND WAIVERS					27
Section 8.1		Without Consent of Holders			27
Section 8.2		With Consent of Holders			28
Section 8.3		Evidence of Compliance to Be Furnished to Trustee			29
ARTICLE IX. MISCELLANEOUS PROVISIONS					29
Section 9.1		Evidence of Compliance with Conditions Precedent, Certificates to Trustee			29
Section 9.2		No Recourse Against Others			29
Section 9.3		Trust Indenture Act Controls			29
Section 9.4		Governing Law			30
Section 9.5		Counterparts			30
Section 9.6		Successors			30
Section 9.7		Severability			30
Section 9.8		Table of Contents, Headings, Etc.			30
Section 9.9		Ratifications			31
Section 9.10		Effectiveness			31
Section 9.11		The Trustee			31

 

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THIS FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”) is entered into as of September 12, 2024 among Americold Realty Operating Partnership, L.P., a Delaware limited partnership (the “Issuer”), Americold Realty Trust, Inc., a Maryland corporation, the Issuer’s sole general partner (the “General Partner” and, in its capacity as a guarantor of the Notes issued hereunder, a “Parent Guarantor”), Americold Realty Operations, Inc., a Delaware corporation, and a limited partner of the Issuer (the “Limited Partner,” and in its capacity as a guarantor of the Notes issued hereunder, a “Parent Guarantor” and, with the General Partner, the “Parent Guarantors”), the Subsidiary Guarantors (as defined below) party hereto each having its principal office at 10 Glenlake Parkway, South Tower, Suite 600, Atlanta, Georgia 30328, and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), having its Corporate Trust Office at 2 Concourse Parkway, Suite 800, Atlanta, Georgia 30328.

WITNESSETH:

WHEREAS, the Issuer, the Parent Guarantors, the Subsidiary Guarantors and the Trustee have entered an Indenture, dated as of September 12, 2024 (the “Base Indenture”), providing for the issuance by the Issuer from time to time of Securities in one or more series;

WHEREAS, Section 301 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, the General Partner, in its capacity as the sole general partner of the Issuer and as a Parent Guarantor of the Notes issued hereunder, and the Limited Partner, in its capacity as a limited partner of the Issuer and as a Parent Guarantor of the Notes issued hereunder, each have duly authorized the execution and delivery of this First Supplemental Indenture by the Issuer and for itself, and its Guarantee of the Notes pursuant to the provisions of this First Supplemental Indenture;

WHEREAS, each other Guarantor (other than the Parent Guarantors), in its capacity as a Guarantor of the Notes issued hereunder, has duly authorized the execution and delivery of this First Supplemental Indenture by itself, and its Guarantee of the Notes pursuant to the provisions of this First Supplemental Indenture;

WHEREAS, the Issuer and each Guarantor desires to execute this First Supplemental Indenture to establish the form and to provide for the issuance of a series of the Issuer’s notes designated as 5.409% Notes due 2034 (the “Notes”), in an initial aggregate principal amount of $500,000,000; 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:

 

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(a) Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Base Indenture; and

(b) 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.

“Acquired Debt” means Debt of a Person (i) existing at the time the Person becomes a Subsidiary or (ii) assumed in connection with the acquisition of assets from the Person, in each case, other than Debt incurred in connection with, or in contemplation of, the Person becoming a Subsidiary or the acquisition. Acquired Debt is 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 Amounts” shall have the meaning ascribed thereto in Section 6.5.

“Additional Notes” means additional Notes (other than the Initial Notes) issued under the Indenture in accordance with Sections 2.3 and 2.7 hereof, as part of the same series as the Initial Notes.

“Adjusted Total Asset Value” shall have the meaning ascribed thereto in Section 6.2.

“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.

“Asset Value” means, as of any date, the sum of (without duplication):

(a) in the case of any Income Property (or group of Income Properties), the Capitalized Value of such Income Property (or group of Income Properties) as of such date; provided, however, that the Asset Value of each Income Property during the first four completed fiscal quarters following the date of acquisition thereof shall be the greater of (i) the acquisition price thereof and (ii) the Capitalized Value thereof (provided that (1) the Asset Value shall be the acquisition price thereof if financial results of one completed fiscal quarter after the acquisition thereof are not available with respect to such Income Property (or group of Income Properties) and (2) after financial results of one completed fiscal quarter after the acquisition thereof are available, the Capitalized Value thereof may be determined by annualizing the financial results of completed fiscal quarters until there are four completed fiscal quarters with available financial results); plus

(b) in the case of any Development Property or Redevelopment Property, 100% of the book value (determined in accordance with GAAP but determined without giving effect to any depreciation or amortization) of any such Development Property or Redevelopment Property; plus

(c) 100% of the book value (determined in accordance with GAAP) of any undeveloped land owned or leased as of such date of determination.

“Authentication Order” means an Issuer Order, delivered on behalf of the Issuer, to the Trustee to authenticate and deliver the Notes.

“Bankruptcy Law” shall have the meaning ascribed thereto in Section 7.1.

“Business Day” means any day, other than a Saturday, Sunday or any other day on which banking institutions in New York, New York or the Place of Payment are authorized or obligated by law or executive order to close.

 

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“Capitalized Value” means, with respect to any property or group of related properties of the General Partner, the Issuer and their respective Subsidiaries, the Property EBITDA of such property or group of related properties (other than, for the avoidance of doubt, any Property EBITDA attributable to any property or group of related properties owned by any unconsolidated partnerships, unconsolidated limited liability companies and other unconsolidated entities), as the case may be, for the most recently completed four fiscal quarters for which financial information is available (subject to annualizing as contemplated in clause (a) of the definition of Asset Value above) divided by 7.50%.

“close of business” means 5:00 p.m. New York City time.

“Code” shall have the meaning ascribed thereto in Section 6.5.

“Debt” means, without duplication, with respect to any Person, any:

(a) indebtedness of such Person in respect of borrowed money or evidenced by bonds, notes, debentures or similar instruments;

(b) indebtedness secured by any Lien on any property or asset owned by such Person, but only to the extent of the lesser of (i) the amount of indebtedness so secured and (ii) the fair market value (determined in good faith by the Issuer) of the property subject to such Lien;

(c) reimbursement obligations, contingent or otherwise, in connection with any letters of credit actually issued or amounts representing the balance deferred and unpaid of the purchase price of any property except any such balance that constitutes an accrued expense or trade payable; or

(d) any lease of property by such Person as lessee which is required to be reflected on such Person’s balance sheet as a finance lease in accordance with GAAP;

in the case of items of indebtedness under clauses (a) and (c) immediately above to the extent that any such items (other than letters of credit) would appear as liabilities on such Person’s balance sheet in accordance with GAAP; provided, however, that the term “Debt” shall: (1) include, to the extent not otherwise included, any non-contingent obligation of such Person 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 the types referred to above of another Person (other than the General Partner, the Issuer or any of their respective Subsidiaries); provided, however, that the term “Debt” shall not include Permitted Non-Recourse Guarantees of the General Partner, the Issuer, or any of their respective Subsidiaries until they become primary obligations of, and payments are due and required to be made thereunder by, the General Partner, the Issuer or any of their respective Subsidiaries; (2) exclude any such indebtedness (or obligations referenced in clause (1) above) that has been the subject of an “in substance” defeasance in accordance with GAAP; and (3) exclude Intercompany Indebtedness that is subordinate in right of payment to the Notes (or an obligation to be liable for, or to pay, Intercompany Indebtedness that is subordinate in right of payment to the Notes). In the case of indebtedness under clause (d) immediately above, the term “Debt” will exclude operating lease liabilities on such Person’s balance sheet in accordance with GAAP.

“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 Depository Trust Company and any successor thereto.

“Development Property” means real property acquired by the General Partner, the Issuer or any of their respective Subsidiaries for, or currently under, development into an Income Property that, in accordance with GAAP, would be classified as an asset on the consolidated balance sheet of the General Partner and its Subsidiaries.

“Event of Default” shall have the meaning ascribed thereto in Section 7.1.

 

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“Future Guarantor” means, following the original issue date of the Notes, each direct and indirect Subsidiary of the General Partner (other than the Issuer, the Limited Partner and the Subsidiary Guarantors), if such Subsidiary, directly or indirectly, becomes a co-borrower, guarantor or other obligor under the Primary Credit Facility, and, accordingly, is required to guarantee the Issuer’s obligations under the Notes pursuant to, and in accordance with, Section 1013 of the Base Indenture.

“Global Note Legend” means the legend set forth in Section 3.2(f), which is required to be placed on all Global Notes issued under the Indenture.

“Global Notes” means, individually and collectively, each of the 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.

“Governmental Authority” means the government of the United States or any other nation, or of any state or other political subdivision thereof, any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank), any securities exchange and any self-regulatory organization.

“Guarantors” means collectively the Parent Guarantors, each Subsidiary Guarantor and each Future Guarantor, if any, who becomes obligated to Guarantee the Issuer’s obligations under the Notes pursuant to the provisions of the Indenture and executes and delivers a supplemental indenture to the Trustee that provides for a Guarantee.

“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.

“Indirect Participant” means a Person who holds a beneficial interest in a Global Note through a Participant.

“Income Property” means any real or personal property or assets (including any personal property ancillary thereto or used in connection therewith or in support thereof) owned, operated or leased or otherwise controlled by the General Partner, the Issuer or their respective Subsidiaries and earning current income whether from rent, lease payments, operations or otherwise. “Income Property” shall not include any Development Property, Redevelopment Property or undeveloped land during the period such property or assets are Development Properties, Redevelopment Properties or undeveloped land as reasonably determined by the Issuer.

“Initial Notes” means the $500,000,000 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 and shall include Additional Amounts, to the extent payable.

“Interest Payment Date” shall have the meaning ascribed thereto in Section 2.4.

“Interest Expense” means, for any four fiscal quarter period, without duplication, the amount that is payable for interest expense on, and the amortization during such period of any original issue discount of, the Debt of the General Partner, the Issuer and their respective Subsidiaries in such period as determined on a consolidated basis in accordance with GAAP, but excluding prepayment penalties and gains or losses on early extinguishment of Debt to the extent otherwise included in arriving at the Interest Expense for such period, and such Interest Expense shall be calculated based on the following assumptions:

 

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(a) such Debt and any other Debt incurred by the General Partner, the Issuer or any of their respective Subsidiaries since the first day of such four fiscal quarter period had been incurred, and the application of the proceeds from such Debt (including to repay or retire other Debt) had occurred, on the first day of such period;

(b) the repayment or retirement of any other Debt of the General Partner, the Issuer or any of their respective Subsidiaries since the first day of such four fiscal quarter period had occurred on the first day of such period (except that, in making this computation, the amount of Debt under any revolving credit facility, line of credit or similar facility will be computed based upon the average daily balance of such Debt during such period);

(c) in the case of Acquired Debt or Debt incurred by the General Partner, the Issuer or any of their respective Subsidiaries in connection with any acquisition since the first day of such four fiscal quarter period, the related acquisition had occurred as of the first day of such period with appropriate adjustments with respect to such acquisition being included in the pro forma calculation; and

(d) in the case of any acquisition or disposition by the General Partner, the Issuer or any of their respective Subsidiaries of any asset or group of assets with a fair market value in excess of $5.0 million since the first day of such four fiscal quarter period, whether by merger, stock purchase or sale or asset purchase or sale or otherwise, 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.

For purposes of calculating “Interest Expense,” if the Debt giving rise to the need to make the calculation described above or any other Debt incurred after the first day of the relevant four fiscal quarter 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 the interest rate on such Debt will be computed on a pro forma basis as if the average of the daily rates that would have been in effect during the entire four fiscal quarter period had been the applicable rate for the entire such period.

“Lien” means any mortgage, deed of trust, lien, charge, pledge, security interest, security agreement or encumbrance, other than a Permitted Lien.

“Non-Guarantor Subsidiaries” shall have the meaning ascribed thereto in Section 2.11.

“Non-Recourse Debt” means Debt of a joint venture or Subsidiary of the Issuer (or an entity in which the Issuer is the general partner or managing member) that is directly or indirectly secured by real estate assets or other real estate-related assets (including equity interests) of the joint venture or Subsidiary of the Issuer (or entity in which the Issuer is the general partner or managing member) that is the borrower and is non-recourse to the General Partner 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 Issuer (or entity in which the Issuer is the general partner or managing member) that is the borrower); provided further that, if any such Debt is partially recourse to the General Partner 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 Issuer (or entity in which the Issuer 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.”

“Note Guarantee” means the Guarantee by each of the Parent Guarantors and the Subsidiary Guarantors of the Issuer’s obligations under the Indenture and the Notes, executed pursuant to the provisions of the Base Indenture and this First Supplemental Indenture and the Guarantee by any Future Guarantor, if any, executed pursuant to the provisions of the Base Indenture and this First Supplemental Indenture and evidenced by a supplemental indenture and a Notation of Guarantee.

“Notes” shall have the meaning ascribed thereto in the preamble to this First Supplemental 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.

“Par Call Date” means June 12, 2034.

 

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“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 Lien” means an operating lease, Lien securing taxes, assessments and similar charges, mechanics’ lien and other similar Liens and any Lien that secures Debt of the General Partner or any of its Subsidiaries owed to the Issuer or any Guarantor.

“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 General Partner 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 equity interests) of a joint venture or Subsidiary of the Issuer (or an entity in which the Issuer is the general partner or managing member), in each case that is the borrower in such financing, but is non-recourse to the General Partner 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.

“Property EBITDA” means, for any period of time with respect to any property or any group of related properties of the General Partner, the Issuer and their respective Subsidiaries (excluding any properties that are not Income Properties), the sum, with respect to such property or group of related properties, of the net income (or net loss) derived from such property for such period (excluding, without duplication, gains (or losses) from dispositions of depreciable real estate investments, property valuation losses and impairment charges);

(a) plus, without duplication and solely to the extent already deducted (and not added back) in arriving at such net income (or net loss), the sum of the following amounts for such period:

 

(1)

interest expense (whether paid or accrued and whether or not capitalized);

 

(2)

income tax expense;

 

(3)

depreciation expense;

 

(4)

amortization expense (including amortization of right-of-use assets associated with finance leases of property);

 

(5)

extraordinary, non-recurring and unusual items, charges or expenses (including, without limitation, property valuation losses, impairment charges, fees and costs and expenses, prepayment penalties and costs, fees or expenses incurred in connection with any capital markets offering, debt financing, or amendment thereto, redemption or exchange of indebtedness, lease termination, business combination, acquisition, disposition, recapitalization or similar transaction (regardless of whether such transaction is completed));

 

(6)

expenses and losses associated with hedging agreements;

 

(7)

expenses and losses resulting from fluctuations in foreign exchange rates;

 

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(8)

other non-cash items, charges or expenses reducing net income (or increasing net loss) (other than items that will require cash payments and for which an accrual or reserve is, or is required by GAAP to be, made in which case, at the election of the Issuer such items may be added back when accrued and deducted from net income when paid in cash, or given effect (and not added back to net income) when accrued or reserved);

 

(9)

the amount of integration costs deducted (and not added back) in such period in computing the net income (or net loss);

 

(10)

severance, relocation costs, signing costs, retention or completion bonuses, transition costs, curtailments or modifications to pension and post-retirement employee benefit plans (including any settlement of pension liabilities); and

 

(11)

to the extent not included in net income or, if otherwise excluded from Property EBITDA due to the operation of the first clause below, the amount of insurance proceeds received during such period, or after such period and on or prior to the date the calculation is made with respect to such period, attributable to such property;

(b) minus, without duplication and solely to the extent included in arriving at such net income (or net loss), the sum of the following amounts for such period:

 

(1)

extraordinary, non-recurring and unusual gains (other than insurance proceeds);

 

(2)

gains attributable to hedging agreements;

 

(3)

non-cash gains resulting from fluctuations in foreign exchange rates; and

 

(4)

other non-cash gains increasing net income (or decreasing net loss) other than accruals in the ordinary course;

provided that to the extent any amounts referred to in this definition or deducted in calculating net income (or net loss) (including any costs or expenses included in calculating net income (or net loss)) are required to be paid by any Person that is a lessee or operator of any such property, such amounts will not be subtracted, and will be added back to Property EBITDA for the applicable property or group of properties.

Property EBITDA will be adjusted, without duplication, to give pro forma effect: (x) in the case of any assets having been placed-in-service or removed from service since the beginning of the period and on or prior to the date of determination, to include or exclude, as the case may be, any Property EBITDA earned or eliminated as a result of the placement of such assets in service or removal of such assets from service as if the placement of such assets in service or removal of such assets from service occurred at the beginning of the period; and (y) in the case of any acquisition or disposition of any asset or group of assets with a fair market value in excess of $5 million since the beginning of the period and on or prior to the date of determination, including, without limitation, by merger, or stock or asset purchase or sale, to include or exclude, as the case may be, any Property EBITDA earned or eliminated as a result of the acquisition or disposition of those assets as if the acquisition or disposition occurred at the beginning of the period. For purposes of calculating Property EBITDA, all amounts shall be as determined reasonably by the Issuer, and in accordance with GAAP except to the extent that GAAP is not applicable.

“Pro Rata Share” means, with respect to (i) any Wholly-Owned Subsidiary of the General Partner or the Issuer, 100%, and (ii) with respect to any other Subsidiary of the General Partner or the Issuer, the percentage interest held by the General Partner or the Issuer, as applicable, directly or indirectly, in such Subsidiary determined by calculating the percentage of the equity interests of such Subsidiary owned by the General Partner, the Issuer and/or one or more of their Subsidiaries.

“Record Date” shall have the meaning ascribed thereto in Section 2.4.

 

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“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 4.2.

“Redemption Price” shall have the meaning ascribed thereto in Section 4.1.

“Redevelopment Property” means any real property owned by the General Partner, the Issuer or any of their respective Subsidiaries that operates or is intended to operate as an Income Property:

(a) (i) that has been acquired by the General Partner, the Issuer or any of their respective Subsidiaries with a view toward renovating or rehabilitating such real property at an aggregate anticipated cost of at least 10% of the acquisition cost thereof and such renovation or rehabilitation is expected to disrupt the occupancy of at least 30% of the rentable operating square footage of such property or (ii) that General Partner, the Issuer or any of their respective Subsidiaries intends to renovate or rehabilitate at an aggregate anticipated cost in excess of 10% of the Capitalized Value of such real property immediately prior to such renovation or rehabilitation and such renovation or rehabilitation is expected to temporarily reduce the Property EBITDA attributable to such property by at least 30% as compared to the immediately preceding comparable prior period;

(b) that does not qualify as a Development Property; and

(c) that the Issuer so desires to classify as a “Redevelopment Property” for purposes of the Notes;

provided that the General Partner, the Issuer or any of their respective Subsidiaries, as the case may be, intend to commence the renovation or rehabilitation of such real property within six months of any date of determination with respect to the classification of such property as a Redevelopment Property.

“Subsidiary Guarantor” means Americold Australian Holdings Pty Ltd, a limited company organized under the laws of Australia, Icecap Properties NZ Limited, a limited company organized under the laws of New Zealand, and Nova Cold Logistics ULC, an unlimited company organized under the laws of Nova Scotia, Canada, collectively, and each a “Subsidiary Guarantor.”

“Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, assessments, fees, withholdings (including backup withholding) or other governmental charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Total Asset Value” means, as of any date, the Pro Rata Share of the following:

(a) the sum of the Asset Values as of such date for all assets constituting Income Properties, Development Properties, Redevelopment Properties or undeveloped land owned by the General Partner, the Issuer or any of their respective Subsidiaries, plus

(b) the aggregate amount of cash and cash equivalents (as defined in accordance with GAAP) owned by the General Partner, the Issuer or any of their respective Subsidiaries as of such date, plus

(c) earnest money deposits made by the General Partner, the Issuer or any of their respective Subsidiaries in connection with potential acquisitions as of such date, plus

(d) the book value (determined in accordance with GAAP) (but determined without giving effect to any depreciation or amortization) of all other investments held by the General Partner, the Issuer or any of their respective Subsidiaries as of such date (exclusive of accounts receivable, right-of-use operating lease assets and non-real estate intangible assets).

“Total Unencumbered Asset Value” means, as of any date, the aggregate of the Total Asset Value for all assets owned by the General Partner, the Issuer and any of their respective Subsidiaries that are not subject to any Lien which secures Debt of the General Partner, the Issuer or any of their respective Subsidiaries, all determined on a consolidated basis in accordance with GAAP; provided, however, that, in determining Total Unencumbered Asset Value as a percentage of outstanding Unsecured Debt for purposes of Section 6.1, all investments by the General Partner, the Issuer or any of their respective Subsidiaries in unconsolidated limited partnerships, unconsolidated limited liability companies and other unconsolidated entities shall be excluded from Total Unencumbered Asset Value.

 

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“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Issuer in accordance with the following two paragraphs.

The Treasury Rate shall be determined by the Issuer as of 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the date the notice of redemption is given based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily)—H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities – Treasury constant maturities – Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Issuer shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields—one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life—and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.

If on the third Business Day preceding the date the notice of redemption is given H.15 TCM is no longer published, the Issuer shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding the date the notice of redemption is given of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Issuer shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Issuer shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.

“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.

“Unsecured Debt” means Debt of the General Partner, the Issuer or any of their respective Subsidiaries (as determined on a consolidated basis in accordance with GAAP) which is not secured by a Lien on any property or assets of the General Partner, the Issuer or any of their respective Subsidiaries.

“Wholly-Owned Subsidiary” means, with respect to the Issuer or the General Partner, any Person (excluding an individual), 100% of the outstanding shares of stock or other equity interests of which are owned and controlled, directly or indirectly, by the Issuer or the General Partner, as the case may be, or by one or more other Subsidiaries of the Issuer or the General Partner, as the case may be.

 

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ARTICLE II. TERMS OF THE SECURITIES

Section 2.1 Title of the Securities.

There shall be a Series of Securities designated the “5.409% Notes due 2034.”

Section 2.2 Price.

The Initial Notes shall be issued at a public offering price of 100.000% 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 $500,000,000. The Issuer 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 Issuer or authentication or delivery by the Trustee of Notes under the circumstances contemplated by Sections 304, 305, 306, 904, or 1107 of the Base Indenture.

Section 2.4 Interest and Interest Rates; Stated Maturity of Notes.

(a) The Notes shall bear interest at the rate of 5.409% per year. Interest on the Notes will accrue from and including September 12, 2024 and will be payable semi-annually in arrears on March 12 and September 12 of each year, commencing on March 12, 2025 (each such date being an “Interest Payment Date”), to the Persons in whose names the Notes are registered in the Security Register (the “Holders”) at the close of business 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.

(b) 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.

(c) The Stated Maturity of the Notes shall be September 12, 2034.

(d) The Issuer shall be permitted to reduce interest payments and any premiums, if any, otherwise payable to a Holder for any amounts the Issuer is required to withhold by law.

Section 2.5 Method of Payment.

Principal, premium, if any, and interest shall be payable at the Corporate Trust Office. The Issuer 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 Issuer (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 Interest Payment Date (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 Issuer, at its election in each case, as provided in Clause (a) or (b) below:

 

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(a) The Issuer 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 for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Issuer shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each 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 agree to an earlier date), and at the same time the Issuer 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 reasonably 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 Issuer 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 agree to an earlier date). The Issuer shall promptly notify the Trustee in writing of such special record date and 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 Security Register, not less than 10 calendar days prior to such special record date. Notice of the proposed payment of such Defaulted Interest and the special record date therefor having been 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 (b) of this Section 2.5.

(b) The Issuer 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 Issuer 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 Issuer will be entitled, without the consent of, or notice to, any Holders of the Notes, upon delivery of an Officers’ Certificate, Opinion of Counsel and Authentication Order to the Trustee, and 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, under certain circumstances, the issue price and first payment of interest thereon; provided, however, that if such Additional Notes will not be fungible with the Initial Notes for U.S. federal income tax purposes, such Additional Notes will have a separate CUSIP number. Such Additional Notes will rank equally and ratably in right of payment and will be treated as a single series for all purposes under the Indenture.

With respect to any Additional Notes, the Issuer will set forth in a resolution of the board of directors of the General Partner acting on behalf of the Issuer and an Officers’ Certificate, a copy of each of which will be delivered to the Trustee, the following information:

(a) the aggregate principal amount of such Additional Notes to be authenticated and delivered pursuant to the Indenture;

and

(b) 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 Issuer prior to the Stated Maturity as provided in Article IV.

 

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Section 2.9 No Sinking Fund.

The provisions of Article XII of the Base Indenture shall not be applicable to the Notes.

Section 2.10 Security Registrar and Paying Agent.

The Trustee shall initially serve as Security Registrar and Paying Agent for the Notes.

Section 2.11 Ranking.

(a) The Notes shall be unsecured senior obligations of the Issuer. The Notes shall:

 

(1)

rank equally in right of payment with all existing and future unsecured senior indebtedness of the Issuer;

 

(2)

be effectively subordinated to all existing and future secured indebtedness of the Issuer and the Issuer’s Subsidiaries to the extent of the value of the assets securing such indebtedness;

 

(3)

be structurally subordinated to all existing and future indebtedness and other liabilities, including trade payables, and preferred equity of the Issuer’s Subsidiaries that do not Guarantee the Notes (the “Non-Guarantor Subsidiaries”) (other than any indebtedness owed to the Issuer or any Subsidiary Guarantor by such Non-Guarantor Subsidiaries); and

 

(4)

rank senior in right of payment to all of the Issuer’s existing and future indebtedness, if any, that is by its terms expressly subordinated to the Notes.

(b) The Guarantees shall be unsecured senior obligations of each Guarantor and shall:

 

(1)

rank equally in right of payment with all existing and future unsecured senior indebtedness of such Guarantor;

 

(2)

be effectively subordinated to all existing and future secured indebtedness of such Guarantor and such Guarantor’s Subsidiaries to the extent of the value of the assets securing such indebtedness;

 

(3)

be structurally subordinated to all existing and future indebtedness and other liabilities, including trade payables, and preferred equity of such Guarantor’s Subsidiaries (other than any indebtedness owed to such Guarantor by such subsidiaries) unless any such Guarantor’s Subsidiary is the Issuer or a Guarantor of the Notes; and

 

(4)

rank senior in right of payment to all existing and future indebtedness of such Guarantor, if any, that is by its terms expressly subordinated to such Guarantor’s Guarantee.

Section 2.12 Covenant Defeasance and Waiver of Covenants.

The covenants set forth in Section 6.1, Section 6.2, Section 6.3 and Section 6.4 hereof, in addition to the other covenants referred to in Section 402(3) of the Base Indenture, shall be subject to covenant defeasance under Section 402(3) of the Base Indenture. In addition to the covenants subject to waiver pursuant to Section 1011 of the Base Indenture, the covenants set forth in Section 6.1, Section 6.2, Section 6.3, Section 6.4 and Section 6.6 hereof, and Section 1014 of the Base Indenture shall be subject to waiver under Section 1011 of the Base Indenture.

 

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ARTICLE III. FORM OF THE SECURITIES

Section 3.1 Global Form.

The Notes shall initially be issued in the form of one or more fully registered Global Notes that will be deposited with, or on behalf of the Depositary, and registered in the name of the Depositary or its nominee, as the case may be, subject to Sections 203 and 305 of the Base Indenture. So long as the Depositary, or its nominee, is the registered owner of the Global Note, the Depositary or its nominee, as the case may be, will be considered the sole Holder of the Notes represented by the Global Note for all purposes under the Indenture.

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 Issuer shall execute and the Trustee shall, in accordance with Section 303 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 Security 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 Issuer, the Guarantors 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.

Participants of the Depositary shall have no rights either under the Indenture or with respect to the Global Notes. The Depositary or its nominee, as applicable, may be treated by the Issuer, the Guarantors, the Trustee and any agent of the Issuer, the Guarantors or the Trustee as the absolute owner and Holder of such Global Notes for all purposes under the Indenture. Notwithstanding the foregoing, nothing herein shall prevent the Issuer, the Guarantors or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or its nominee, as applicable, or impair, as between the Depositary and its participants, the operation of customary practices of such Depositary governing the exercise of the rights of an owner of a beneficial interest in the Global Notes.

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 Issuer for Definitive Notes if:

(1) the Issuer 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 Issuer within 90 days after the date of such notice from the Depositary; or

(2) the Issuer, at its option, 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.

 

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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 in writing. Global Notes also may be exchanged or replaced, in whole or in part, as provided in Sections 304 and 306 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 304 and 306 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) or (c).

(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. 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:

(1) Transfer of Beneficial Interests in the Same Global Note. Beneficial interests in any Global Note may be transferred to Persons who take delivery thereof in the form of a beneficial interest in a Global Note. No written orders or instructions shall be required to be delivered to the Security 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 Security 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 Security 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 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(g).

(c) Transfer and Exchange of Beneficial Interests in Global Notes for Definitive Notes. If any holder of a beneficial interest in a Global Note proposes to exchange such beneficial interest for a Definitive Note or to transfer such beneficial interest to a Person who takes delivery thereof in the form of a Definitive Note, then, upon satisfaction of the conditions set forth in Section 3.2(b)(2) and written notice to the Trustee, the Trustee will cause the aggregate principal amount of the applicable Global Note to be reduced accordingly pursuant to Section 3.2(g) hereof, and the Issuer will execute and, upon the receipt of an Authentication Order, the Trustee will authenticate and deliver to the Person designated in the instructions a Definitive Note in the appropriate principal amount. Any Definitive Note issued in exchange for a beneficial interest pursuant to this Section 3.2(c) 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 Security Registrar from or through the Depositary and the Participant or Indirect Participant. The Trustee will deliver such Definitive Notes to the Persons in whose names such Notes are so registered.

 

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(d) Transfer and Exchange of Definitive Notes for Beneficial Interests in Global Notes. A Holder of a Definitive Note may exchange such Note for a beneficial interest in a Global Note or transfer such Definitive Notes to a Person who takes delivery thereof in the form of a beneficial interest in a Global Note at any time. Upon receipt of a request for such an exchange or transfer, the Trustee will cancel the applicable Definitive Note and increase or cause to be increased the aggregate principal amount of one of the Global Notes. If any such exchange or transfer from a Definitive Note to a beneficial interest is effected pursuant to the previous sentence at a time when a Global Note has not yet been issued, the Issuer will issue and, upon receipt of an Authentication Order in accordance with Section 3.2, the Trustee will authenticate one or more 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 the written request by a Holder of Definitive Notes and such Holder’s compliance with the provisions of this Section 3.2(e), the Security 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 Security Registrar the Definitive Notes duly endorsed or accompanied by a written instruction of transfer in form reasonably satisfactory to the Security Registrar duly executed by such Holder or by its attorney, duly authorized in writing. In addition, the requesting Holder must provide any additional certifications, documents and information, as applicable, required pursuant to the following provisions of this Section 3.2(e). A Holder of Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of a Definitive Note. Upon receipt of a written request to register such a transfer, the Security Registrar shall register the Definitive Notes pursuant to the instructions from the Holder thereof.

(f) Legend. Each Global Note issued under the Indenture, unless specifically stated otherwise in the applicable provisions of the Indenture and, for the avoidance of doubt, in lieu of the legend contained in Section 203 of the Base Indenture, will bear a legend in substantially the following form:

“THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE FIRST SUPPLEMENTAL 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(a) OF THE FIRST SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF AMERICOLD REALTY OPERATING PARTNERSHIP, 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 (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.”

 

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(g) 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 Section 309 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.

(h) General Provisions Relating to Transfers and Exchanges.

(1) To permit registrations of transfers and exchanges, the Issuer will execute and the Trustee will authenticate Global Notes and Definitive Notes upon receipt of an Authentication Order or at the Security 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 Issuer 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 304 and 904 of the Base Indenture and Section 4.3 of this First Supplemental Indenture).

(3) The Security 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 Issuer, 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 Security Registrar nor the Issuer will be required:

(A) to register the transfer of or to exchange any Note during a period beginning at the opening of business fifteen days before the delivery of a notice of redemption of the Notes under Article IV and ending at the close of business on the day of such delivery;

(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; or

(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 Issuer may deem and treat the Person in whose name any Note is registered as the absolute owner of such Note for the purpose of receiving payment of principal of and premium, if any, interest on such Notes and for all other purposes, and none of the Trustee, any Security Registrar, Paying Agent or the Issuer 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.

 

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(8) All certifications, certificates and Opinions of Counsel required to be submitted to the Security Registrar pursuant to this Section 3.2 to effect a registration of transfer or exchange may be submitted by facsimile.

(i) In connection with any proposed transfer outside the book-entry system, there shall be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045. The Trustee may conclusively rely on the information provided to it and shall have no responsibility to verify or ensure the accuracy of such information.

(j) None of the Trustee or any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including any transfers between or among Depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.

(k) None of the Trustee or any Security Registrar or Paying Agent shall have any responsibility or obligation to any beneficial owner of a Global Note, a member of, or a participant in the Depositary or other Person with respect to the accuracy of the records of the Depositary or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Depositary) of any notice (including any notice of optional redemption) or the payment of any amount, under or with respect to such Notes.

ARTICLE IV. REDEMPTION OF NOTES

The provisions of Article XI 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.

Prior to the Par Call Date, the Issuer shall have the right to redeem the Notes at its option, in whole or in part, at any time and from time to time, at a redemption price (the “Redemption Price”) in cash (expressed as a percentage of principal amount and rounded to three decimal places) calculated by the Issuer and equal to the greater of (i) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 0.250% (or 25 basis points) less (b) unpaid interest accrued thereon to, but excluding, the Redemption Date, and (ii) 100% of the principal amount of the Notes to be redeemed, plus, in either case, unpaid interest accrued thereon to, but excluding, the Redemption Date.

On or after the Par Call Date, the Issuer may redeem the Notes, in whole or in part, at any time and from time to time, at a Redemption Price in cash equal to 100% of the principal amount of the Notes being redeemed plus unpaid interest accrued thereon to, but excluding, the Redemption Date.

The Issuer shall not redeem the Notes pursuant to this Section 4.1 if on any date the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded or cured on or prior to the Redemption Date.

The Issuer’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.

 

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Section 4.2 Notice of Optional Redemption, Selection of Notes.

(a) In case the Issuer 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 Redemption Date 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 Issuer, shall mail or cause to be mailed, or sent by electronic transmission, a notice of such redemption not fewer than ten 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 Security Register; provided that if the Issuer 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 Issuer. 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.

(c) On or prior to the Redemption Date specified in the notice of redemption given as provided in this Section 4.2, the Issuer will deposit with the Paying Agent (or, if the Issuer is acting as its own Paying Agent, set aside, segregate and hold in trust as provided in Section 311 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 Issuer 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 (it being acknowledged that the Trustee has no obligation to invest any such deposit).

(d) If less than all of the outstanding Notes are to be redeemed, the Trustee will select, by lot or such method as it deems fair and appropriate or, if applicable, as required by the Depositary for Global Notes, subject to Applicable Procedures (in the case of Global Notes), 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 Issuer.

(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 and if the Paying Agent holds funds sufficient to pay the Redemption Price of the Notes on the Redemption Date and at the place or places stated in such notice at the Redemption Price, and unless the Issuer defaults in the payment of the Redemption Price, then on and after such date (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 Issuer 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

 

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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 Issuer at the Redemption Price, together with interest accrued thereon to, but excluding, the Redemption Date. Such will be the case whether or not book-entry transfer of the Notes in book-entry form is made and whether or not the Notes in certificated form, together with necessary endorsements, are delivered to the Paying Agent; provided, however, if the Redemption Date falls after a Record Date and on or prior to the corresponding Interest Payment Date, the Issuer will pay the full amount of accrued and unpaid interest and premium, if any, due on such Interest Payment Date to the Holder of record at the close of business on the corresponding Record Date.

(b) Notwithstanding the foregoing, installments of interest that are due and payable on any Interest Payment Date falling on or prior to a Redemption Date will be payable to the persons who were the registered Holders of the Notes (or one or more predecessor notes) at the close of business on the relevant Record Date for such Interest Payment Date according to their terms and the provisions of this Indenture. Written notice of redemption must be given to the Trustee on the date that the Redemption Price is determined and to the Holders of the Notes (or portions thereof) to be redeemed (with a copy to the Trustee) not less than 10 nor more than 60 days prior to the Redemption Date.

(c) Upon presentation of any Note redeemed in part only, the Issuer shall execute and the Trustee shall, upon receipt of an Authentication Order, authenticate and make available for delivery to the Holder thereof, at the expense of the Issuer, a new Note or Notes, of authorized denominations, in principal amount equal to the unredeemed portion of the Notes so presented.

ARTICLE V. GUARANTEE

The provisions of Article XV of the Base Indenture shall be applicable to the Notes, except that Section 5.1 and Section 5.2 shall replace Section 1501 and Section 1503 of the Base Indenture, respectively, with respect to the Notes and the Guarantee. Each Guarantor, to evidence its Guarantee pursuant to Section 1502 of the Base Indenture, has executed this supplemental indenture and a Notation of Guarantee and has affixed such Notation of Guarantee to the Notes. By its execution of the Notation of Guarantee, each Guarantor acknowledges and agrees that it receives substantial benefits from the Issuer and that such Guarantor is providing its Guarantee for good and valuable consideration, including, without limitation, such substantial benefits.

Section 5.1 Note Guarantee.

(a) Subject to this Article V, each Guarantor hereby jointly and severally, fully and 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, and premium, if any, and interest, on the Notes will be promptly paid in full when due, whether at Stated 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 Issuer under the Indenture or the Notes, and interest, if any, on, the Notes, if lawful, and all other obligations of the Issuer to the Holders or the Trustee under the Indenture or the Notes (including fees and expenses of counsel) 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.

Failing payment when due of any amount so guaranteed or any performance so guaranteed for whatever reason, each Guarantor will be obligated to pay the same immediately. Each Guarantor agrees that this is a guarantee of payment and not a guarantee of collection.

 

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(b) Each Guarantor hereby agrees that it is a primary obligor of the obligations guaranteed hereby, and not merely a surety, and 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 Issuer, any action to enforce the same or any other circumstance which might otherwise constitute a legal or equitable discharge or defense of such Guarantor. Each Guarantor hereby agrees that in the event of a default in payment of the principal of or interest on the Notes entitled to the Guarantee, whether at the Stated Maturity or upon acceleration, call for redemption or otherwise, legal proceedings may be instituted by the Trustee on behalf of the Holders or, subject to Section 504 of the Base Indenture, by the Holders, on the terms and conditions set forth in the Indenture, directly against any Guarantor to enforce the Guarantee without first proceeding against the Issuer. Each Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest, notice and all demands whatsoever, (ii) acknowledges that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it and (iii) 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 Issuer, any Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to either the Issuer or any 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) Each 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. Each Guarantor further agrees that, as between such 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 such Guarantor for the purpose of this Note Guarantee.

(e) Any Guarantee provided by any Foreign Subsidiary shall be subject to legal and regulatory requirements and restrictions applicable to such Foreign Subsidiary.

Section 5.2 Limitation of Guarantor’s Liability.

Each Guarantor, and by its acceptance of Notes, each Holder, hereby confirms that it is the intention of all such parties that the Note Guarantee of each 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 (or any comparable provision of applicable foreign law) to the extent applicable to the Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders and each Guarantor hereby irrevocably agree that the obligations of each Guarantor will be limited to the maximum amount that will not, after giving effect to all other contingent and fixed liabilities of such Guarantor that are relevant under such laws, result in the obligations of such Guarantor under its Note Guarantee constituting a fraudulent transfer or conveyance.

Each Guarantor hereby covenants and agrees, to the fullest extent that it may do so under applicable law, that in the event of the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Issuer, such Guarantor shall not file (or join in any filing of), or otherwise seek to participate in the filing of, any motion or request seeking to stay or to prohibit (even temporarily) execution on the Guarantee and hereby waives and agrees not to take the benefit of any such stay of execution, whether under Section 362 or 105 of the Bankruptcy Law or otherwise.

ARTICLE VI. ADDITIONAL COVENANTS

Except as otherwise specified in this Article VI, the provisions of Article X of the Base Indenture and the following additional covenants shall apply with respect to the Notes so long as any of the Notes remain outstanding.

 

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For purposes of Section 6.1, Section 6.2, Section 6.3 and Section 6.4, Debt shall be deemed to be “incurred” by the General Partner, the Issuer or any of their respective Subsidiaries, as applicable, whenever the General Partner, the Issuer or any such Subsidiary shall create, assume, guarantee or otherwise become liable in respect thereof.

Section 6.1 Maintenance of Total Unencumbered Assets.

The General Partner, the Issuer and their respective Subsidiaries will not have, at any time, a Total Unencumbered Asset Value of less than 150% of the aggregate principal amount of all outstanding Unsecured Debt of the General Partner, the Issuer and their respective Subsidiaries determined on a consolidated basis in accordance with GAAP.

Section 6.2 Total Debt Test.

Neither the General Partner nor the Issuer will, nor will either of them permit any of its Subsidiaries to, incur any Debt if, immediately after giving effect to the incurrence of such Debt and the application of the proceeds from such Debt on a pro forma basis, the aggregate principal amount (determined on a consolidated basis in accordance with GAAP) of all outstanding Debt of the General Partner, the Issuer and their respective Subsidiaries at the time of such incurrence would exceed 60% of the sum of (i) the Total Asset Value as of the last day of the then most recently ended fiscal quarter for which financial information is available prior to the incurrence of such Debt, and (ii) the aggregate purchase price of any real estate assets acquired, and the aggregate amount of any securities offering proceeds received (to the extent such proceeds were not used to acquire real estate assets or used to reduce Debt), by the General Partner, the Issuer or any of their respective Subsidiaries since the end of such fiscal quarter (such sum of (i) and (ii), the “Adjusted Total Asset Value”).

Section 6.3 Secured Debt Test.

Neither the General Partner nor the Issuer will, nor will either of them permit any of its Subsidiaries to, incur any Debt secured by any Lien on any property or assets of the General Partner, the Issuer, or any of their respective Subsidiaries, whether owned on the date hereof or subsequently acquired, if, immediately after giving effect to the incurrence of such Debt and the application of the proceeds from such Debt on a pro forma basis, the aggregate principal amount (determined on a consolidated basis in accordance with GAAP) of all outstanding Debt of the General Partner, the Issuer and their respective Subsidiaries that is secured by a Lien on any such property or assets at the time of such incurrence is greater than 40% of the Adjusted Total Asset Value.

Section 6.4 Interest Coverage Ratio Test.

Neither the General Partner nor the Issuer will, nor will either of them permit any of its Subsidiaries to, incur any Debt if, immediately after giving effect to the incurrence of such Debt and the application of the proceeds from such Debt on a pro forma basis, the ratio of Property EBITDA to Interest Expense for the General Partner and its Subsidiaries determined on a consolidated basis in accordance with GAAP, in each case, for the then most recently ended four fiscal quarter period for which financial information is available prior to the incurrence of such Debt, would be less than 1.50 to 1.00.

Section 6.5 Additional Amounts.

This Section 6.5 shall replace Section 1010 of the Base Indenture with respect to the Notes only.

(a) Payments made by each Subsidiary Guarantor and each Future Guarantor that is a Foreign Subsidiary, if any, in respect of their respective Guarantees will be made free and clear of, and without deduction or withholding for, any Taxes, unless such Subsidiary Guarantor or Future Guarantor, as applicable, is required to deduct or withhold Taxes by applicable law.

 

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(b) If, pursuant to Section 6.5(a), any Subsidiary Guarantor or any Future Guarantor that is a Foreign Subsidiary is required by applicable law to deduct or withhold any amount for or on account of Taxes from any payment made with respect to its Guarantee, such Subsidiary Guarantor or Future Guarantor shall pay such additional amounts as may be necessary so that the sum payable by such Subsidiary Guarantor or Future Guarantor is increased as necessary so that, after such deduction or withholding has been made, each Holder or beneficial owner of the Notes receives an amount equal to the sum it would have received had no such deduction or withholding been made (“Additional Amounts”); provided that no Additional Amounts will be payable with respect to Taxes:

(1) that are imposed as a result of the Holder or beneficial owner of the Notes being organized under the laws of, or having its principal office in, the jurisdiction imposing such Tax (or any political subdivision thereof);

(2) that are imposed as a result of a present or former connection between the Holder or beneficial owner of the Notes and the jurisdiction imposing such Tax;

(3) payable other than by withholding from payments in respect of the Guarantee of such Subsidiary Guarantor or Future Guarantor;

(4) that would not have been imposed but for the failure of the applicable recipient of such payment to comply with any certification, identification, information, documentation or other reporting requirement to the extent:

 

(A)

such compliance is required by applicable law or administrative practice or an applicable treaty as a precondition to exemption from, or reduction in, the rate of deduction or withholding of such Taxes; and

 

(B)

at least 30 days before the first payment date with respect to which such Additional Amounts or Taxes shall be payable, such Subsidiary Guarantor or Future Guarantor has notified such recipient in writing that such recipient is required to comply with such requirement;

(5) that are imposed or withheld pursuant to Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended (the “Code”), as of the issue date of the Notes (or any amended or successor version of such sections), any regulations promulgated thereunder, any official interpretations thereof, any similar law or regulation adopted pursuant to an intergovernmental agreement between a non-U.S. jurisdiction and the United States with respect to the foregoing or any agreements entered into pursuant to Section 1471(b)(1) of the Code; or

(6) any combination of the foregoing subsections 6.5(b)(1) to 6.5(b)(5).

All references in the Indenture to the payment of principal of, and premium, if any, and interest on, the Notes (and similar phrases) or any payment made by any Subsidiary Guarantor or any Future Guarantor that is a Foreign Subsidiary under its Guarantee shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable. Notwithstanding anything to the contrary in the Indenture, in no event shall the Issuer, the Parent Guarantors, or any Future Guarantor that is a Domestic Subsidiary be obligated, directly or indirectly, for Additional Amounts, if any.

Section 6.6 Future Guarantors.

This Section 6.6 shall replace Section 1013 of the Base Indenture with respect to the Notes only.

Following the original issue date of the Notes, the General Partner will cause each of its direct and indirect Subsidiaries (other than the Issuer, the Limited Partner and the Subsidiary Guarantors), if such Subsidiary, directly or indirectly, becomes a co-borrower, guarantor or other obligor under the Primary Credit Facility, to guarantee the Issuer’s obligations under the Notes on a full and unconditional basis, jointly and severally with the other Guarantors, including the due and punctual payment of principal of, and premium, if any, and interest on, the Notes, whether at Stated Maturity, upon acceleration, upon redemption or otherwise, by executing and delivering a supplemental indenture that provides for the Guarantee within 30 calendar days of becoming so obligated in accordance with this Indenture, at which time all provisions of the Indenture, the Notes and the Guarantees applicable to a Guarantor shall become applicable to such Future Guarantor. Such supplemental indenture in respect

 

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of any Guarantee provided by any Foreign Subsidiary shall be subject to legal and regulatory requirements and restrictions applicable to such Foreign Subsidiary. In addition, each Future Guarantor that is a Foreign Subsidiary, if any, will be required to pay Additional Amounts in respect of amounts payable under its Guarantee as contemplated under Section 6.5 of this First Supplemental Indenture.

ARTICLE VII. DEFAULTS AND REMEDIES

Sections 7.1 and 7.2 hereof shall replace Section 501 of the Base Indenture with respect to the Notes only. All references to Sections 501(1), 501(2), 501(3) contained in the Base Indenture shall refer to Sections 7.1(a), 7.1(b) and 7.1(c) hereof. All references to Section 501(5) and Section 501(6) in the Base Indenture (and references of like import) shall refer to Sections 7.1(f), 7.1(g) and 7.1(h) hereof.

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 or any Additional Amounts under the Notes or the Guarantees thereof, as the case may be;

(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) failure by the Issuer or any Guarantor to comply with any of the Issuer’s or such Guarantor’s respective other agreements in the Notes, the Note Guarantees or the Indenture with respect to the Notes upon receipt by the Issuer of written notice of such default by the Trustee or by Holders of not less than 25% in principal amount of the Notes then Outstanding and the Issuer’s failure to cure (or obtain a waiver of) such default within 60 days after the Issuer receives such notice;

(d) failure to pay any Debt (other than Non-Recourse Debt) for monies borrowed by the Issuer, the General Partner or any of their respective Significant Subsidiaries in an outstanding principal amount in excess of $75.0 million at final maturity or upon acceleration after the expiration of any applicable grace period, which Debt (other than Non-Recourse Debt) is, or has become, the primary obligation of the Issuer or the General Partner or any of their respective Significant Subsidiaries and is not discharged, or such default in payment or acceleration is not cured or rescinded, within 60 days after written notice to the Issuer from the Trustee (or to the Issuer and the Trustee from Holders of not less than 25% in principal amount of the Outstanding Notes);

(e) any Guarantor’s Guarantee of the Notes ceases to be in full force and effect (except as contemplated by the terms of the Indenture) or is declared null and void in a judicial proceeding or any Guarantor denies or disaffirms its obligations under the Indenture or its Note Guarantee; or

(f) the Issuer, any Parent Guarantor or any of their respective Significant Subsidiaries pursuant to or under or within meaning of any Bankruptcy Law:

(1) commences a voluntary case or proceeding seeking liquidation, reorganization or other relief with respect to the Issuer, any such Parent Guarantor or any such Significant Subsidiary or its debts or seeking the appointment of a trustee, receiver, liquidator, custodian or other similar official of the Issuer, any such Parent Guarantor or any such Significant Subsidiary or any substantial part of the property of the Issuer, any such Parent Guarantor or any such Significant Subsidiary; or

(2) 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 Issuer, any such Parent Guarantor or any such Significant Subsidiary; or

 

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(3) consents to the appointment of a custodian of it or for all or substantially of its property; or

(4) makes a general assignment for the benefit of creditors; or

(g) an involuntary case or other proceeding shall be commenced against the Issuer, any Parent Guarantor or any of their respective Significant Subsidiaries seeking liquidation, reorganization or other relief with respect to the Issuer, any Parent Guarantor or any such 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 Issuer, any Parent Guarantor or any such Significant Subsidiary or any substantial part of the property of the Issuer, any Parent Guarantor or any such Significant Subsidiary, and such involuntary case or other proceeding shall remain undismissed and unstayed for a period of 60 calendar days; or

(h) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:

(1) is for relief against the Issuer, any Parent Guarantor or any of their respective Significant Subsidiaries in an involuntary case or proceeding;

(2) appoints a trustee, receiver, liquidator, custodian or other similar official of the Issuer, any Parent Guarantor or any such Significant Subsidiary or any substantial part of the property of the Issuer, any Parent Guarantor or any such Significant Subsidiary; or

(3) orders the liquidation of the Issuer, any Parent Guarantor or any such Significant Subsidiary,

in each case in this clause (h), the order or decree remains unstayed and in effect for 60 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) with respect to the Issuer or any Parent Guarantor, 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 premium, if any, 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 Issuer and the General Partner (and to the Trustee if given by the Holders), and upon any such declaration such principal amount (or specified amount), and premium, if any, 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 premium, if any, 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.

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 by the Trustee or entered as hereinafter provided, Holders of not less than 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 Issuer and to the Trustee, may waive all declared defaults or Events of Default and rescind and annul such declaration and its consequences, subject in all respects to Section 507 of the Base Indenture. 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.

 

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In case the Trustee shall have proceeded to enforce any right under the Indenture with respect to the Notes and such proceedings shall have been discontinued or abandoned because of such waiver or rescission and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Issuer, the Guarantors, the Holders, and the Trustee shall be restored respectively to their several positions and rights under the Indenture, and all rights, remedies and powers of the Issuer, the Guarantors, the Holders, and the Trustee shall continue as though no such proceeding had been taken.

Anything in the Indenture to the contrary notwithstanding, interest on any overdue installments of principal of and premium, if any, as applicable, and (to the extent that payment of such interest is lawful) interest on the Notes shall accrue and be payable at the same rate as interest is otherwise payable on the Notes.

ARTICLE VIII. AMENDMENTS AND WAIVERS

Sections 8.1 and 8.2 hereof shall replace Sections 901 and 902 of the Base Indenture with respect to the Notes only.

Section 8.1 Without Consent of Holders.

The Issuer, when authorized by resolutions of the board of directors of the General Partner, the Guarantors 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 Issuer as obligor under the Notes or any Guarantor as guarantor under the Indenture with respect to the Notes;

(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 by 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 Commission in order to effect or maintain the qualification of the Indenture under the TIA;

(g) to reflect the release of any of the Guarantors 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 under the captions “Description of Notes” and “Description of Debt Securities and Related Guarantees” in the prospectus and prospectus supplement relating to the Notes.

Upon the written request of the Issuer, accompanied by a copy of the resolutions of the board of directors of the General Partner certified by the corresponding Secretary or Assistant Secretary, authorizing the execution of any supplemental indenture, the Trustee is hereby authorized to join with the Issuer and the Guarantors 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.

 

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Any supplemental indenture authorized by the provisions of this Section 8.1 may be executed by the Issuer, the Guarantors 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 a majority in aggregate principal amount of the Notes at the time Outstanding, the Issuer, the Guarantors 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 Defaulted Interest) on, or any Additional Amounts with respect to, the Notes or the Guarantees thereof, as the case may be;

(c) reduce the principal of, or premium, if any, on, or change the Stated Maturity of, the Notes;

(d) change any obligation of any Subsidiary Guarantor or any Future Guarantor that is a Foreign Subsidiary, to pay any Additional Amounts;

(e) waive a 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);

(f) make the principal of, or premium, if any, or interest on, the Notes payable in any currency other than that stated in the Notes;

(g) make any change in Section 504 of the Base Indenture, 507 of the Base Indenture or Section 8.2(g) of this First Supplemental Indenture (this sentence);

(h) make any change to the redemption dates or prices (or the manner of calculation thereof) of the Notes; or

(i) release any Guarantor as a guarantor of the Notes other than as provided in the Indenture or modify the Note Guarantee in any manner adverse to the Holders.

Upon the written request of the Issuer, accompanied by a copy of the resolutions of the board of directors of the General Partner certified by the corresponding Secretary or Assistant Secretary, authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of an Officers’ Certificate certifying receipt of the requisite consent of Holders as aforesaid, upon which the Trustee shall be entitled to conclusively rely, the Trustee shall join with the Issuer and the Guarantors 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, but shall not be obligated to, enter into such supplemental indenture.

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.

 

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Section 8.3 Evidence of Compliance to Be Furnished to Trustee.

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 receive, and shall be fully protected in relying upon, an Opinion of Counsel or an Officers’ 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 Issuer and the Guarantors as applicable, enforceable against it in accordance with its terms.

ARTICLE IX. MISCELLANEOUS PROVISIONS

Section 9.1 Evidence of Compliance with Conditions Precedent, Certificates to Trustee.

This Section 9.1 shall replace Sections 102 of the Base Indenture with respect to the Notes only.

Upon any application or demand by the Issuer to the Trustee to take any action under any of the provisions of the Indenture, the Issuer shall furnish to the Trustee an Officers’ Certificate in a form reasonably acceptable to the Trustee stating that all covenants and 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 covenants and conditions precedent have been complied with. The Officers’ 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 Officers’ 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 Officers’ 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 Officers’ Certificate or certificates of public officials.

Section 9.2 No Recourse Against Others.

This Section 9.2 shall replace Section 114 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 Issuer in this First Supplemental Indenture or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any trustee, officer, employee, incorporator, stockholder or partner, as such, past, present or future, of the Guarantors, the Issuer or any of the Issuer’s Subsidiaries or of any successor thereto, either directly or through the Guarantors, the Issuer or any of the Issuer’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 9.3 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.

 

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Section 9.4 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 9.5 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 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. The words “execution,” “signed,” “signature,” and words of like import in this First Supplemental Indenture shall include images of manually executed signatures transmitted by facsimile, email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. Without limitation to the foregoing, and anything in this First Supplemental Indenture to the contrary notwithstanding, (a) any Officers’ Certificate, Issuer Order, Opinion of Counsel, Note, Note Guarantee, opinion of counsel, instrument, agreement or other document delivered pursuant to this First Supplemental Indenture may be executed, attested and transmitted by any of the foregoing electronic means and formats, (b) all references in the Base Indenture, or elsewhere in the Indenture to the execution, attestation or authentication of any Note, any Notation of Guarantee, or any certificate of authentication appearing on or attached to any Note by means of a manual or facsimile signature shall be deemed to include signatures that are made or transmitted by any of the foregoing electronic means or formats, and (c) any requirement in this Indenture that any signature be made under a corporate seal (or facsimile thereof) shall not be applicable to the Notes or any Notation of Guarantee. The Issuer agrees to assume all risks arising out of the use of using digital signatures, including without limitation the risk of the Trustee acting on unauthorized instructions.

Section 9.6 Successors.

All agreements of the Issuer and the Guarantors 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 9.7 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 9.8 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.

 

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Section 9.9 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 9.10 Effectiveness.

The provisions of this First Supplemental Indenture shall become effective as of the date hereof.

Section 9.11 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 Issuer. The recitals contained herein shall be taken as the statements solely of the Issuer, and the Trustee assumes no responsibility for the correctness thereof. If and when the Trustee shall be or become a creditor of the Issuer (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 Issuer (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.

 

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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed by their respective officers hereunto duly authorized, all as of the day and year first written above.

 

AMERICOLD REALTY OPERATING
PARTNERSHIP, L.P., as the Issuer
By:		AMERICOLD REALTY TRUST, INC.,
its General Partner
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and
		Executive Vice President
AMERICOLD REALTY TRUST, INC., as a
Parent Guarantor
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and
		Executive Vice President
AMERICOLD REALTY OPERATIONS, INC.,
as a Parent Guarantor
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and
		Executive Vice President
NOVA COLD LOGISTICS ULC, as a
Subsidiary Guarantor
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and
		Executive Vice President
AMERICOLD AUSTRALIAN HOLDINGS
PTY LTD, as a Subsidiary Guarantor
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and
		Executive Vice President
ICECAP PROPERTIES NZ LIMITED, as a
Subsidiary Guarantor
By:		/s/ E. Jay Wells
		Name: E. Jay Wells
		Title: Chief Financial Officer and
		Executive Vice President

[Signature Page to First Supplemental Indenture]

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U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:		/s/ April Bright
		Name: April Bright
		Title: Vice President

[Signature Page to First Supplemental Indenture]

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EXHIBIT A

AMERICOLD REALTY OPERATING PARTNERSHIP, L.P.

THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE FIRST SUPPLEMENTAL 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(a) OF THE FIRST SUPPLEMENTAL INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 309 OF THE BASE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF AMERICOLD REALTY OPERATING PARTNERSHIP, 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 (55 WATER STREET, NEW YORK, NEW YORK) (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR 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.

AMERICOLD REALTY OPERATING PARTNERSHIP, L.P.

5.409% NOTES DUE 2034

Certificate No. [ ]

CUSIP No.: [•]

ISIN: [•]

$[ ]

AMERICOLD REALTY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (herein called the “Issuer,” 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 12, 2034 at the office or agency of the Issuer 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 12 and September 12 of each year, commencing on March 12, 2025, to the Holder in whose name the Note is registered in the Security Register at the close of business 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 Issuer 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 Issuer (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 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 by the Trustee or a duly authorized authenticating agent under the Indenture.

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IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.

Dated: [ ], 20[ ]

 

AMERICOLD REALTY OPERATING PARTNERSHIP, L.P.
By: AMERICOLD REALTY TRUST, INC.,
Its General Partner
By:

Name:
Title:

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TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes described in the within-named Indenture. Dated: [ ], 20[ ]

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
By:
		Authorized Signatory

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[FORM OF REVERSE SIDE OF NOTE]

AMERICOLD REALTY OPERATING PARTNERSHIP, L.P.

5.409% NOTES DUE 2034

This Note is one of a duly authorized issue of Securities of the Issuer, designated as 5.409% Notes due 2034 (herein called the “Notes”), issued under and pursuant to an Indenture dated as of September 12, 2024 (herein called the “Base Indenture”), among the Issuer, Americold Realty Trust, Inc., Americold Realty Operations, Inc., the Subsidiary Guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee, as supplemented by the First Supplemental Indenture, dated as of September 12, 2024 (herein called the “First Supplemental Indenture,” and together with the Base Indenture, the “Indenture”), among the Issuer, Americold Realty Trust, Inc., Americold Realty Operations, Inc., the Subsidiary Guarantors party thereto and U.S. Bank Trust Company, National Association, as trustee (herein called the “Trustee”), 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 Issuer, the Guarantors 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 Issuer) 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 not less than 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, 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 Issuer, the Guarantors and the Trustee, with the consent of the Holders of 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 Issuer and the Holder of the Notes, the obligation of the Issuer, 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 minimum denominations of $2,000 principal amount and any multiple of $1,000. At the office or agency of the Issuer 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 Issuer 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.

The obligations of the Guarantors to the Holders of the Notes and to the Trustee pursuant to the respective Note Guarantees and the Indenture are expressly set forth in Article V of the First Supplemental Indenture and Article XV of the Base Indenture and reference is hereby made to such Indenture for the precise terms of the respective Note Guarantees.

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Except as otherwise expressly provided in Article V of the First Supplemental Indenture, no recourse for the payment of the principal of (including the Redemption Price 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 Issuer in the First Supplemental Indenture or in any Note, or because of the creation of any indebtedness represented thereby, shall be had against any trustee, officer, employee, incorporator, stockholder or partner, as such, past, present or future, of the Guarantors, the Issuer or any of the Issuer’s Subsidiaries or of any successor thereto, either directly or through the Guarantors, the Issuer or any of the Issuer’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 the Indenture and the issue of the Notes.

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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 Issuer. 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).

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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:

 

						Principal amount
		Amount of		Amount of		at maturity of this
		decrease in		increase in		Global Note
		principal amount		principal amount		following such		Signature of
Date of		at maturity of this		at maturity of this		decrease (or		authorized officer of
Exchange		Global Note		Global Note		increase)		Trustee or Custodian

 

*	This Schedule should be included only if the Note is issued in global form.

Exhibit 5.1

 

One Atlantic Center

1201 West Peachtree Street

Atlanta, GA 30309-3424

404-881-7000 | Fax: [phone]

September 12, 2024

Americold Realty Trust, Inc.

Americold Realty Operating Partnership, L.P.

Americold Realty Operations, Inc.

10 Glenlake Parkway

South Tower, Suite 600

Atlanta, Georgia 30328

 

Re:

Registration Statement on Form S-3ASR (Registration Nos. 333-270664, 333-270664-01, 333-270664-02, 333-270664-03, 333-270664-04 and 333-270664-05)

Ladies and Gentlemen:

We have acted as counsel to Americold Realty Trust, Inc., a Maryland corporation (the “Parent Guarantor”), Americold Realty Operating Partnership, L.P., a Delaware limited partnership (the “Company”) and Americold Realty Operations, Inc., a Delaware corporation (the “Limited Partner”) and the subsidiaries of the Company listed in Schedule A (the “Subsidiary Guarantors,” and, together with the Limited Partner and the Parent Guarantor, the “Guarantors” and the Guarantors, together with the Company, the “Americold Entities”), in connection with the above-referenced shelf registration statement, and all amendments thereto (collectively, the “Registration Statement”) as filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Securities Act”).

We are furnishing this opinion letter to you pursuant to Item 16 of the Commission’s Form S-3ASR and Item 601(b)(5) of the Commission’s Regulation S-K, in connection with the issuance of $500,000,000 aggregate principal amount of 5.409% Notes Due 2034 (the “Notes”) by the Company and the guarantees of the Notes by the Guarantors (each, a “Guarantee” and collectively, the “Guarantees” and, together with the Notes, the “Securities”), pursuant to the prospectus, dated March 17, 2023, included in the Registration Statement (the “Base Prospectus”), the preliminary prospectus supplement, dated and filed with the Commission on September 5, 2024 pursuant to Rule 424(b)(5) under the Securities Act (the “Preliminary Prospectus Supplement”), and the final prospectus supplement, dated September 5, 2024 and filed with the Commission on September 9, 2024 pursuant to Rule 424(b)(5) under the Securities Act (the “Final Prospectus Supplement,” and, together with the Preliminary Prospectus Supplement, the “Prospectus Supplements,” and, collectively, the Base Prospectus and the Prospectus Supplements and the documents incorporated by reference therein, the “Prospectus”). The Securities are to be issued under the First Supplemental Indenture, dated as of September 12, 2024 (the “Supplemental Indenture”), to the base Indenture, dated as of September 12, 2024 (as supplemented by the Supplemental Indenture, the “Indenture”), by and among the Americold Entities and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”). The Securities are being issued and sold to the several underwriters (the “Underwriters”) named in the Underwriting Agreement, dated as of September

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September 12, 2024

Page 2

 

5, 2024 (the “Underwriting Agreement”), by and among the Americold Entities and BofA Securities, Inc., Citigroup Global Markets Inc. and J.P. Morgan Securities LLC, as representatives of the Underwriters named therein. The Underwriting Agreement, the Indenture and the Securities collectively are referred to herein as the “Transaction Documents.”

In our capacity as such counsel, we have reviewed such matters of law and examined original, certified, conformed or photographic copies of such other documents, records, agreements and certificates as we have deemed necessary as a basis for the opinions hereinafter expressed. In such review, we have assumed the genuineness of signatures on all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified, conformed or photographic copies. We have relied, as to the matters set forth therein, on certificates of public officials. As to certain matters of fact material to this opinion, we have relied, without independent verification, upon representations, warranties and statements made in originals or copies, certified or otherwise identified to our satisfaction, of such records, agreements, documents and instruments entered into by the Americold Entities in connection with the issuance of the Securities, including, without limitation, the Transaction Documents, certificates of the Americold Entities, and of certain officers of the Americold Entities.

In rendering this opinion, we have assumed that: (i) the Indenture has been duly authorized, executed and delivered by each party thereto (other than the Company and the Limited Partner); (ii) the Indenture is a valid and binding agreement of, the Trustee, enforceable against the Trustee in accordance with its terms, and (iii) the execution and delivery of, and performance by the Americold Entities, as applicable, pursuant to, any Security (A) require no action by or in respect of, or filing with, any governmental body, agency or official and (B) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon any of the Americold Entities, as applicable.

Based upon the foregoing, and subject, in all respects, to the limitations, qualifications, exceptions and assumptions set forth herein, it is our opinion that:

(1) The Notes, when duly executed by the Company and authenticated and delivered by the Trustee in accordance with the provisions of the Underwriting Agreement and the Indenture against payment of the requisite consideration therefor, will constitute the valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, subject as to the enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally and to the effect of general principles of equity.

(2) Assuming each of the Guarantees has been duly authorized, executed and delivered by the applicable Guarantors (other than the Limited Partner) in accordance with applicable law, and when the Guarantee has been duly executed by the Limited Partner, the Guarantees, when the Notes have been duly executed by the Company and duly authenticated and delivered by the Trustee as provided in the Indenture against payment of the requisite consideration therefor as provided in the Underwriting Agreement, will constitute the valid and legally binding obligations of the Guarantors, enforceable against the Guarantors in accordance with their terms, subject, as to the enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the rights and remedies of creditors generally and to the effect of general principles of equity.

This opinion letter is provided for use solely in connection with the transactions contemplated by the Registration Statement and the Prospectus, and may not be used, circulated, quoted or otherwise relied upon for any other purpose without our prior express written consent. The only opinion rendered by us consists of those matters set forth in the paragraphs numbered (1) and (2) above, and no opinion may be implied or inferred beyond the opinion expressly stated.

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September 12, 2024

Page 3

 

This opinion is limited in all respects to the laws of the State of New York, the Delaware General Corporation Law and the Delaware Revised Uniform Limited Partnership Act, and no opinion is expressed with respect to the laws of any other jurisdiction or any effect that such laws may have on the opinions expressed herein. This opinion is limited to the matters stated herein, and no opinion is implied or may be inferred beyond the matters expressly stated herein. Insofar as this opinion letter involves matters of Maryland, Australian, New Zealand or Canadian law we have, with your permission, relied solely on the opinions of Venable LLP, K&L Gates LLP, Ellis Gould and Stewart McKelvey, each dated September 12, 2024, copies of which we understand you are filing as Exhibits 5.2, 5.3, 5.4 and 5.5, respectively, to the Parent Guarantor’s Current report on Form 8-K, dated as of September 12, 2024 (the “Closing 8-K”), which will be incorporated by reference into the Registration Statement, and with respect to matters involving Maryland, Australian, New Zealand or Canadian law our opinion is subject to the exceptions, qualifications and limitations set forth in such opinions.

This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur which could affect the opinions contained herein.

We consent to the filing of this opinion letter as Exhibit 5.1 to the Closing 8-K, to the incorporation by reference of this opinion into the Registration Statement and to the reference to this law firm under the caption “Legal Matters” in the Prospectus Supplements constituting a part of the Registration Statement. In giving such consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.

[Signature appears on following page.]

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Sincerely,
ALSTON & BIRD LLP
By:		/s/ Justin R. Howard
		Justin R. Howard
		A Partner

[Signature Page to the Exhibit 5.1 Legal Opinion]

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SCHEDULE A

Subsidiary Guarantors

 

1.	Americold Australian Holdings Pty Ltd

 

2.	Icecap Properties NZ Limited

 

3.	Nova Cold Logistics ULC

[Signature Page to the Exhibit 5.1 Legal Opinion]

Exhibit 5.2

 

September 12, 2024

Americold Realty Trust, Inc.

10 Glenlake Parkway

South Tower, Suite 600

Atlanta, Georgia 30328

 

Re:

Registration Statement on Form S-3 (Registration Nos. 333-270664,

333-270664-01, 333-270664-02, 333-270664-03, 333-270664-04 and 333

270664-05                              

Ladies and Gentlemen:

We have served as Maryland counsel to Americold Realty Trust, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration by (a) Americold Realty Operating Partnership, L.P., a Delaware limited partnership (the “Operating Partnership”), of $500,000,000 aggregate principal amount of the Operating Partnership’s 5.409% Notes due 2034 (the “Notes”) and (b) the Company of its guarantee (the “Company Guarantee”) and the other Guarantors (as defined herein) of their guarantees (the “Other Guarantor Guarantees” and, together with the Company Guarantee, the “Guarantees”), in each case, of the obligations of the Operating Partnership under the Notes, covered by the above-referenced Registration Statement, and all amendments thereto (collectively, the “Registration Statement”), filed with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”). This firm did not participate in the negotiation or drafting of the Indenture (as defined herein).

In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (hereinafter collectively referred to as the “Documents”):

1. The Registration Statement;

2. The Prospectus, dated March 17, 2023, as supplemented by a Prospectus Supplement, dated September 5, 2024, filed with the Commission pursuant to Rule 424(b) of the General Rules and Regulations promulgated under the 1933 Act;

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Americold Realty Trust, Inc.

September 12, 2024

Page 2

 

3. The charter of the Company, certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);

4. The Amended and Restated Bylaws of the Company, certified as of the date hereof by an officer of the Company;

5. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;

6. Resolutions adopted by the Board of Directors of the Company relating to, among other matters, (a) the issuance of the Company Guarantee and (b) the authorization of the execution, delivery and performance by the Company of the Indenture and the Company Notation (as defined herein), certified as of the date hereof by an officer of the Company;

7. The Indenture, dated as of the date hereof (the “Base Indenture”), and the First Supplemental Indenture, dated as of the date hereof (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), each by and among the Operating Partnership, the Company, Americold Realty Operations, Inc., a Delaware corporation (the “Limited Partner”), certain subsidiaries of the Operating Partnership (the “Subsidiary Guarantors” and, together with the Company and the Limited Partner, the “Guarantors”) and U.S. Bank Trust Company, National Association, as trustee;

8. The Notation of Guarantee, dated as of the date hereof, by each of the Guarantors, attached to the Global Note evidencing the Notes (such Notation of Guarantee as executed by the Company, the “Company Notation”);

9. A certificate executed by an officer of the Company, dated as of the date hereof; and

10. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.

In expressing the opinion set forth below, we have assumed the following:

1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.

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Americold Realty Trust, Inc.

September 12, 2024

Page 3

 

2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.

3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.

4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.

Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:

1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.

2. The Company has the corporate power to execute, deliver and perform its obligations under the Indenture and the Company Notation and to issue the Company Guarantee.

3. The execution and delivery by the Company of, and the performance by the Company of its obligations under, the Indenture and the Company Notation and the issuance by the Company of the Company Guarantee have been duly authorized by all necessary corporate action of the Company.

4. The Indenture and the Company Notation have been duly executed and delivered by the Company.

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Americold Realty Trust, Inc.

September 12, 2024

Page 4

 

The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning federal law or the laws of any other state. We express no opinion as to compliance with any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers or the laws, codes or regulations of any municipality or other local jurisdiction. To the extent that any matter as to which our opinion is expressed herein would be governed by the laws of any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.

The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.

This opinion is being furnished to you for submission to the Commission as an exhibit to the Company’s Current Report on Form 8-K relating to the Notes and the Guarantees (the “Current Report”). Alston & Bird LLP, counsel to the Company and the Operating Partnership, may rely on this opinion in connection with any opinions to be delivered by it in connection with the Notes and the Guarantees. We hereby consent to the filing of this opinion as an exhibit to the Current Report and the said incorporation by reference and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.

 

Very truly yours,

/s/ Venable LLP

Exhibit 5.3

 

 

September 12, 2024		Partner: Richard Gray   [e-mail]   T [phone]   Contact: Harsharan Gill   [e-mail]   T [phone]   Our ref: 8001610.00001
Americold Realty Trust, Inc. Americold Realty Operating Partnership, L.P. 10 Glenlake Parkway Suite 600, South Tower Atlanta, GA 30328

Dear Addressees:

Americold – 2024 Debt Securities Offering

We have acted as Australian legal advisors to the Australian Guarantor in connection with the Documents and Post-Effective Amendment (as each term is defined below). The Documents relate to, among other things, the offering of debt securities of the Issuer (as defined below) (the Debt Securities), including guarantees by the Australian Guarantor of the Debt Securities in the form and substance set out in the Documents. The Debt Securities, including the Guarantees, are to be issued under the Documents.

 

1.

Documents

We have examined and relied upon (without further inquiry) only the following documents:

 

(a)

the Indenture between, among others, the Issuer, Americold Realty Trust, Inc. (a Maryland corporation, the Parent Guarantor), the Australian Guarantor and the Trustee and dated as of September 12, 2024 (the Indenture);

 

(b)

the First Supplemental Indenture between, among others, the Issuer, the Parent Guarantor, the Australian Guarantor and the Trustee and dated as of September 12, 2024;

 

(c)

the global note dated as of September 12, 2024 issued by the Issuer to Cede & Co., or its registered assigns evidencing the Debt Securities (the Global Note);

 

(d)

the notation of guarantee issued by the Australian Guarantor and dated as of September 12, 2024 (the Guarantee);

 

(e)

an electronic copy of the Prospectus Supplement dated September 5, 2025 filed with the Securities and Exchange Commission by the Issuer and the Parent Guarantor on September 9, 2024 (the Prospectus);

 

(f)

a certified copy of the extract of minutes of resolutions of the board of directors of the Australian Guarantor;

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(g)

a certified copy of the constitution of the Australian Guarantor; and

 

(h)

the documents arising from the searches at the Australian Securities and Investments Commission referred to in paragraph 5(c).

 

2.	Definitions

Expressions defined in this Opinion or in a Document have the meanings given in this Opinion or that Document and:

 

(a)

Acting Person means Richard Gray, a partner of this firm and Harsharan Gill, a special counsel of this firm;

 

(b)

Addressees means the Issuer and the Parent Guarantor;

 

(c)

Australia means the Commonwealth of Australia;

 

(d)

Australian Guarantor means Americold Australian Holdings Pty Ltd ACN 117 491 291;

 

(e)

Company Extract means the documents referred to in paragraph 1(h);

 

(f)

Corporations Act means the Corporations Act 2001 (Cth);

 

(g)

Corporate Constitution means the document referred to in paragraph 1(g);

 

(h)

Document means a document referred to in paragraph 1(a), paragraph 1(b) or paragraph 1(d);

 

(i)

Issuer means Americold Realty Operating Partnership, L.P. (a Delaware limited partnership)

 

(j)

Opinion means this letter;

 

(k)

Post-Effective Amendment means the document entitled “Post-Effective Amendment No. 1 to Form S-3 Registration Statement Under the Securities Act of 1933” in the form executed by the Australian Guarantor;

 

(l)

Registration Statement means the Registration Statement on Form S-3 filed by the Parent Guarantor and Issuer on March 17, 2023, as amended by the Post-Effective Amendment and as may be amended and supplemented from time to time;

 

(m)

Relevant Jurisdiction means, as the context requires, the State of New South Wales and Australia;

 

(n)

Relevant Laws means the laws of the Relevant Jurisdictions;

 

(o)

Resolutions means the resolutions of the board of directors of the Australian Guarantor recorded in the minutes of meeting referred to in paragraph 1(f); and

 

(p)

Trustee means U.S. Bank Trust Company, National Association.

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3.

Opinion

Subject to the assumptions and qualifications set out in this Opinion, we are of the opinion that:

 

(a)

the Australian Guarantor is registered and existing as a limited liability company under the laws of the Relevant Jurisdictions;

 

(b)

the Australian Guarantor has all necessary corporate power and capacity

 

(i)

to execute and deliver the Documents and to perform its obligations under the Documents; and

 

(ii)

to issue the Guarantee;

 

(c)

the Australian Guarantor has validly executed each of the Documents;

 

(d)

the Australian Guarantor has taken all necessary corporate action to authorise the execution and delivery of the Documents to which it is expressed to be a party and to authorise the performance of its obligations under those Documents; and

 

(e)

the Australian Guarantor has taken all necessary corporate action to authorise the issuance of the Guarantee.

 

4.	Assumptions

In this Opinion we have assumed the following matters, and we have not made, nor are we obliged to make, any independent investigation of, or enquiries in respect of, those matters:

 

(a)

in relation to each Document or other document examined by us:

 

(i)

all signatories, seals, dates, duty stamps and markings are authentic;

 

(ii)

each person executing a Document for the Australian Guarantor is the actual person or persons authorised to do so under the terms of the Resolutions;

 

(iii)

if a copy or a specimen, it conforms in all respects to the original;

 

(iv)

it is accurate and complete, has not been amended, rescinded, terminated or revoked, it is in full force and effect, it has been, or will be, duly delivered and it is not subject to escrow or conditions;

 

(v)

it constitutes legal, valid, binding and enforceable obligations of all parties to it (other than the Australian Guarantor) under all applicable laws (other than, in respect of a Document and the Australian Guarantor, the Relevant Laws); and

 

(vi)

it has been duly authorised, executed and delivered or issued by all parties to it (other than the Australian Guarantor) under, and its execution, delivery, issue and performance by all parties to it complies with, all applicable laws (other than, in respect of a Document and the Australian Guarantor, the Relevant Laws);

---

(b)

each party to, or with the benefit of, a Document (other than the Australian Guarantor) is duly incorporated or organised and validly existing under all applicable laws;

 

(c)

all corporate records and other documents inspected by us are genuine, complete, up-to-date and accurate and no relevant corporate records have been withheld from us (whether deliberately or inadvertently);

 

(d)

in relation to the Resolutions and the Australian Guarantor entering into and performing its obligations under the Documents:

 

(i)

all required meetings of the directors or any committee of directors were duly convened and a quorum was present and acting throughout;

 

(ii)

any committee of directors has been duly constituted;

 

(iii)

all directors who attended and voted were entitled to be present at each required meeting of directors or a committee of directors and to vote, and all directors who passed each resolution were entitled to do so and were duly appointed;

 

(iv)

all requirements in relation to the meetings of directors or committee meetings and the Resolutions (including, but not limited to, all requirements in relation to the declaration of directors’ interests and the exercise of the power to vote by interested directors) were duly observed;

 

(v)

all directors acted properly in accordance with their legal, equitable and statutory duties to all persons in passing the Resolutions and without limitation, the directors of the Australian Guarantor, in resolving to enter into the Documents have not acted in breach of any fiduciary duty owed by them to the Australian Guarantor and justifiably formed the opinion that the execution and performance of the Documents by the Australian Guarantor is for the benefit of the Australian Guarantor;

 

(vi)

all required resolutions in relation to the Australian Guarantor entering into and performing its obligations under the Documents, have been duly passed, have not been revoked and have been accurately recorded in the records of the Australian Guarantor;

 

(vii)

no regulation or resolution has been passed at any general meeting of shareholders of the Australian Guarantor which has the effect of limiting the powers of the directors of the Australian Guarantor,

but there is nothing on the face of the searches referred to in paragraph 5(e) or on the face of the Resolutions that would lead us to believe otherwise;

---

(e)

execution, delivery, issue or performance of a Document in a jurisdiction other than a Relevant Jurisdiction is legal, valid, binding and enforceable under all laws of that jurisdiction;

 

(f)

we are entitled to make all of the assumptions specified in section 129 of the Corporations Act on the basis of the Company Extract and the fact that no partner or solicitor of this firm nor any other person is disqualified by section 128(4) of the Corporations Act from making those assumptions;

 

(g)

at the date of this Opinion, no liquidator, administrator, receiver, receiver and manager or like officer has been appointed to the Australian Guarantor or any of its assets and the Australian Guarantor has not has been wound up or obtained protection from its creditors under any applicable laws (but we note that our searches in accordance with paragraph 5(e) do not evidence any such appointment);

 

(h)

the Australian Guarantor and each other party to, or with the benefit of, a Document is solvent at the time of, and after giving effect to, the entry into of each Document to which it is a party;

 

(i)

no laws other than the laws of the Relevant Jurisdictions affect this Opinion;

 

(j)

the Australian Guarantor enters into the Documents to which it is expressed to be a party in good faith and in its best interests and for the purpose of and in connection with the carrying on of its business and for its commercial benefit which is commensurate with the obligations to be undertaken by the Australian Guarantor under those Documents;

 

(k)

no person entitled to rely on this Opinion is aware that any assumption made by us is incorrect (but this assumption is not to affect any other person who is entitled to rely on this Opinion who is not so aware);

 

(l)

each choice of law contained in the Documents is bona fide and is not unconnected with the commercial realities of the transactions contemplated by the Documents;

 

(m)

the Australian Guarantor does not enter into a Document in the capacity of a trustee of any trust or settlement or as a partner of a partnership; and

 

(n)

we have assumed that the Australian Guarantor and each other party to, or with the benefit of, a Document has all licences and authorisations required by law for it to conduct its business.

 

5.	Qualifications

This Opinion is subject to the following qualifications:

 

(a)

this Opinion relates only to the laws of the Relevant Jurisdictions in force at the time of giving this Opinion. We neither express nor imply any opinion as to, and have not made any investigation of, the laws of any other jurisdiction. We are under, and assume, no obligation to inform any person of, or of the effect of, any future changes to those or any other laws;

---

(b)

we give no opinion as to the enforceability of any Document;

 

(c)

we have relied upon on-line computer searches of records at the Australian Securities and Investments Commission in respect of the Australian Guarantor, made on September 11, 2024. However, those records are not necessarily complete or up-to-date. We have not made any other searches of any other records (public or otherwise) to inform our opinion in paragraph 3(a);

 

(d)

we have not been involved in, or responsible for, the preparation or content of any offering, briefing, information or disclosure document (including the Registration Statement, the prospectus dated 17 March 2023 and the Prospectus) in connection with the Documents or the transactions contemplated by the Documents (collectively, the Offering Documents), and we are not giving an opinion on, and do not assume any responsibility for, the accuracy, fairness or completeness of any statement contained in the Documents or Offering Documents (including without limitation, any schedule, exhibit, projection, or financial, statistical, operating, accounting, technical or economic or other information or data discussed or referred to in the Documents or Offering Documents), nor have we investigated or verified the completeness, accuracy, materiality or relevance of any facts or statements of fact or the reasonableness or pertinence of any statement of fact or whether any facts or statements of fact have not been disclosed or whether there are, or are not, reasonable grounds for any opinion, projection or statement as to any future matter or whether or not the person making the statement or expressing the opinion believes it to be complete, accurate, material or relevant;

 

(e)

in relation to our opinion in paragraph 3 we have relied upon an examination of the Corporate Constitution and the Resolutions and of the Documents to which the Australian Guarantor is a party;

 

(f)

only the Acting Person has any knowledge in relation to the things dealt with in this Opinion; we are not liable if any partner or solicitor of this firm other than the Acting Person has any knowledge which would render our assumptions or qualifications incorrect: we have not made any investigation as to whether any partner or solicitor of this firm other than the Acting Person has any such knowledge; and

 

(g)

the statements in this Opinion are made by us as lawyers admitted to practice in the State of New South Wales and we make those statements as they would be interpreted by the Courts of New South Wales, without reference to any laws or judicial decisions or statements of any other jurisdiction including without limitation, the United States of America.

 

6.	Benefit and consent

This Opinion is given only in relation to the Documents.

This Opinion is strictly limited to the matters stated in it and does not apply by implication to other matters. We are not responsible for, and have not provided, any advice on the legal effect of the assumptions and qualifications set out in this Opinion. Persons entitled to rely on this Opinion should obtain their own legal advice on the effect, completeness and extent of application of those assumptions and qualifications.

---

This Opinion is only given:

 

(a)

in respect of and is limited to the Relevant Laws as applied by the courts of the Relevant Jurisdictions which are in force at 9.00am Sydney time on the date of this Opinion; and

 

(b)

on the basis that it will be governed by and construed in accordance with the laws of the Relevant Jurisdictions.

This Opinion is given for the sole benefit of each Addressee personally and only in relation to the Documents and other than with, and to the extent of, our prior written consent, may not be:

 

(a)

transmitted, or subject to paragraph 7, disclosed to any other person;

 

(b)

used or (subject to paragraph 7) relied upon by any other person or used or relied upon by an Addressee for any other purpose; and

 

(c)

subject to paragraph 7, filed with any government agency or any other person or quoted or referred to in any public document.

 

7.	Consent to filing

We hereby consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K filed by the Parent Guarantor as of the date hereof and incorporation thereof into the Registration Statement. In giving this consent we do not admit that we are in the category of persons whose consent is required under Section 7 of the U.S. Securities Act of 1933, as amended.

Yours faithfully

 

/s/ Richard Gray Partner K&L Gates

Exhibit 5.4

 

Level 31, Vero Centre

48 Shortland Street

Auckland, New Zealand

PO Box 1509

Auckland 1140

P [phone]

W ellisgould.co.nz

September 12, 2024

Americold Realty Trust, Inc. & Americold Realty Operating Partnership, L.P.

10 Glenlake Parkway

South Tower, Suite 600

Atlanta, GA 30328

United States of America

ICECAP PROPERTIES NZ LIMITED – NEW ZEALAND LEGAL OPINION

 

1	BACKGROUND

 

1.1	We are the New Zealand legal advisors to Icecap Properties NZ Limited (“Icecap NZ”). Icecap NZ is ultimately wholly owned by Americold Realty Trust, Inc. (“ART”).

 

1.2	A related entity of ART, Americold Realty Operating Partnership, L.P. (“AROPLP”) proposes to undertake a note issue (“Issue”) and Icecap NZ (together with certain related entities) intend to guarantee the obligations of AROPLP under the Issue.

 

1.3	A legal opinion has been sought from us as to the matters in paragraph 4.1 of this letter.

 

2

DOCUMENTS

 

2.1	In connection with this opinion we have examined and relied upon (without further inquiry):

 

(a)

An online search of Icecap NZ’s public records dated September 12, 2024 (NZT) on the register of companies maintained by the New Zealand Registrar of Companies (“Companies Register”) (including the Certificate of Incorporation and the Constitution of Icecap NZ dated 6 March 2013 (and its subsequent amendment));

 

(b)

An online search of the High Court of Auckland current cases list dated September 12, 2024 (NZT);

 

(c)

An online search of the Personal Property Securities Register in respect of Icecap NZ dated September 12, 2024 (NZT);

 

(d)

A certificate dated 3 September 2024 from a director of Icecap NZ (“Icecap NZ Director’s Certificate”);

 

(e)

The resolution in writing by the Directors of Icecap NZ dated 22 August 2024;

 

(f)

The resolution in writing signed by the sole Shareholder and Entitled Person of Icecap NZ (namely, Icecap Properties NZ Holdings LLC) dated 23 July 2024;

 

(g)

The Indenture, dated as of September 12, 2024, by and between, among others, AROPLP, ART, U.S. Bank Trust Company, National Association (the “Trustee”), and Icecap NZ (the “Indenture”);

 

(h)

The First Supplemental Indenture, dated as of September 12, 2024, by and between, among others, AROPLP, ART, the Trustee and Icecap NZ (the “Supplemental Indenture”);

---

(i)

the global note dated as of the date hereof issued by AROPLP to Cede & Co., or its registered assigns (the “Global Note”);

 

(j)

the notation of guarantee dated as of the date hereof issued by Icecap NZ (the “Guarantee”);

 

(k)

The Registration Statement on Form S-3 (Registration Nos. 333-270664 and 333-270664-01), filed by ART and AROPLP with the U.S. Securities and Exchange Commission (the “Commission”) on 17 March 2023, as amended by a post-effective amendment no. 1 (the “Post-Effective Amendment”), filed with the Commission (as may be subsequently amended and supplemented from time to time, the “Registration Statement”); and

 

(l)

an electronic copy of the Prospectus Supplement dated September 5, 2025 filed with the Commission on September 9, 2024.

(documents in paragraphs (g), (h) and (j) are referred to as the “Documents”).

 

3	ASSUMPTIONS

 

3.1	For the purposes of giving this opinion, we have assumed the following:

 

(a)

All copies of documents examined by us conform to the originals and all documents examined by us are authentic and complete;

 

(b)

All signatures, seals and markings on the documents submitted to us are genuine;

 

(c)

The records at the Companies Register, Personal Property Securities Register and the High Court of Auckland are up to date, accurate and complete;

 

(d)

Icecap NZ has not commenced and is not the subject of proceedings outside of the province or city where its registered office is located; and

 

(e)

The persons signing the shareholder resolution on behalf of Icecap Properties NZ Holdings LLC was properly authorised to do so.

We have not taken steps to verify these assumptions apart from our review of the searches and documents set out in paragraph 2.1. We have no reason to believe any of these assumptions are incorrect.

 

4

OPINION

 

4.1	Based on the assumptions, and subject to the qualifications set out below and to any matters not disclosed to us, we are of the following opinion:

 

(a)

Icecap NZ is validly incorporated under the laws of New Zealand, duly registered under the Companies Act 1993 (NZ) and is capable of suing and being sued in its own name; and

 

(b)

Icecap NZ has:

 

(i)

the corporate power for the execution and delivery of the Documents;

 

(ii)

the corporate power for the execution, delivery, and issuance of the Guarantee and to execute and perform its obligations under the Documents to which it is a party;

 

(iii)

taken all necessary corporate action to authorise the execution and delivery of the Documents to which it is a party and performance of its obligations under the Documents (to which it is a party); and

 

(iv)

taken all necessary corporate action to authorise the issuance of the Guarantee.

 

(c)

Icecap NZ has duly executed and delivered the Documents.

 

5	QUALIFICATIONS

 

5.1	Our opinion is given subject to the following qualifications:

 

(a)

We neither express nor imply any opinion as to laws of any jurisdiction other than the laws of New Zealand as in force on the date of this opinion. In particular, we express no opinion whatsoever as to the laws of the United States of America;

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(b)

We are not qualified and we express no opinion or provide any advice on non-legal matters such as accounting, financial, taxation or valuation matters;

 

(c)

We are not qualified and we express no opinion on any of the Documents (or its contents) where they are governed by a law that is not New Zealand law;

 

(d)

The enforceability of each Document means that the obligations assumed by Icecap NZ is of a type which a New Zealand court enforces or recognises. It does not mean that those obligations will necessarily be enforced in all circumstances in accordance with their terms or that a particular remedy will be available;

 

(e)

Enforcement of the Documents may be limited by general principles of equity;

 

(f)

The obligations of Icecap NZ are subject to all laws and defences generally affecting creditors’ rights (including, for example, laws relating to insolvency, bankruptcy, administration and liquidation, together with laws relating to moratorium, receivership, reorganisation and reconstruction);

 

(g)

We have relied on searches of the Companies Register, Personal Property Securities Register and the High Court Register described in paragraph 2.1(a) through (c). We note that such records may not be complete or up to date and that an application to liquidate a company or notice of liquidation or resolution for liquidation or appointment of an administrator or a receiver may not be filed with the Registrar of Companies immediately or, even if filed, may not be available for public inspection. It is possible that a statement of claim for the liquidation of Icecap NZ would be accepted by a High Court Registrar other than at Auckland. In addition, security interests may be given by Icecap NZ which have yet to be registered on the Personal Property Security Register or any other register. We have therefore assumed the records of the Registrar of Companies, Personal Property Securities Register and the High Court Registrar at Auckland are accurate, complete and up to date.

 

6

ADDRESSEE

 

6.1	We hereby consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K filed by ART as of the date hereof and the incorporation thereof into the Registration Statement.

 

6.2	This opinion is strictly limited to the laws applying as at the date of this opinion and to the matters stated in it. It does not apply by implication to other matter and we assume no obligation to review or update this opinion.

 

Yours faithfully,

/s/ Ewe Leong Lim

Partner

Ellis Gould

Exhibit 5.5

September 12, 2024

Americold Realty Trust, Inc.

Americold Realty Operating Partnership, L.P.

10 Glenlake Parkway

Suite 600, South Tower

Atlanta, GA 30328

Dear Sirs/Mesdames:

 

Re:	Nova Cold Logistics ULC (the “Company”)

We have acted as local counsel in the Province of Nova Scotia, Canada (the “Province”) for the Company in connection with (i) post-effective amendment no. 1 (the “Registration Statement Amendment”) filed on September 3, 2024 with the United States Securities and Exchange Commission (the “US Commission”) under the United States Securities Act of 1933, as amended (the “US Act”) to the registration statement of Americold Realty Trust, Inc., a Maryland corporation (formerly Americold Realty Trust, a Maryland real estate investment trust) (“Parent”), and Americold Realty Operating Partnership, L.P., a Delaware limited partnership (the “LP Issuer”), on Form S-3 filed on March 17, 2023 (the “Base Registration Statement” and together with the Registration Statement Amendment, the “Registration Statement”) with the US Commission under the US Act; and (ii) a prospectus supplement dated as of September 5, 2024 (the “Prospectus Supplement”) and filed with the US Commission under the US Act on September 9, 2024.

The Registration Statement Amendment and the Prospectus Supplement relate to, among other things, the offering by the LP Issuer of US$500,000,000 in aggregate principal amount of 5.409% Notes due 2034 (the “Notes”) which are guaranteed, jointly and severally, by Parent, Americold Realty Operations, Inc. (the “Limited Partner”), the Company and other guarantors (collectively with Parent, the Limited Partner and the Company, the “Guarantors”) (the “Guarantees”; the Notes, as guaranteed by the Guarantees, being the “Debt Securities”). The Debt Securities are to be issued under an indenture dated as of the date hereof (the “Base Indenture”) by and among the LP Issuer, the Guarantors and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), as supplemented by the first supplemental indenture dated as of the date hereof by and among the LP Issuer, the Guarantors and the Trustee (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”).

We are furnishing this opinion as an exhibit to the Current Report on Form 8-K of the Parent filed with the US Commission as of the date hereof.

In connection with the opinions set out below, we have examined each of the following documents:

 

(a)

the Indenture;

 

(b)

the global note dated as of the date hereof issued by the LP Issuer to Cede & Co., or its registered assigns evidencing the Notes (the “Global Note”);

 

(c)

the Notation of Guarantee, dated as of the date hereof, issued by the Company (the “Notation of Guarantee”) evidencing the guarantee of the Company (the “Company Guarantee”);

---

(d)

the Base Registration Statement;

 

(e)

the Registration Statement Amendment;

 

(f)

the Prospectus Supplement;

 

(g)

a certificate of status (the “Certificate of Status”) pertaining to the Company issued by the Registrar of Joint Stock Companies for the Province dated September 11, 2024;

 

(h)

resolutions of the directors of the Company dated July 23, 2024 authorizing, among other things, the execution and delivery of the Base Indenture, the Supplemental Indenture and the Notation of Guarantee (collectively the “Documents”) and issue of the Company Guarantee by the Company (the “Resolutions”);

 

(i)

the memorandum of association, articles of association, records of corporate proceedings, written resolutions and registers of the Company contained in the minute book of the Company; and

 

(j)

a certificate of an officer of the Company dated the date hereof (the “Officer’s Certificate”).

Where a term is defined in the plural herein to refer to a collective the use of the singular thereof refers to any one of the collective.

We have also examined the originals or copies, certified or otherwise identified to our satisfaction, of such public and corporate records, certificates, instruments and other documents and have considered such questions of law as we have deemed necessary as a basis for the opinions hereinafter expressed.

In stating our opinions, we have assumed:

 

(a)

the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as notarial, certified, telecopies, conformed or reproduction copies thereof and the authenticity of the originals of such documents;

 

(b)

the completeness and accuracy of all statements of fact set forth in official public records and certificates and other documents supplied by public officials;

 

(c)

the completeness and accuracy of all statements of fact set forth in the Officer’s Certificate and that such statements shall remain true at the time of any issue of Debt Securities;

 

(d)

that the Certificate of Status evidences the subsistence of the Company, that the Company has not been dissolved as of the date hereof and that a certificate of status bearing today’s date could be obtained if requested;

 

(e)

that if any of the Debt Securities are issued to purchasers in the Province, or any significant activities in connection with the issue and sale of the Debt Securities are taken in the Province, such issue and sale will comply with, or be exempt from, the prospectus requirement of the securities laws of the Province and the dealer requirements of the securities laws of the Province will, if applicable, be complied with; and

 

2

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(f)

that each of the Documents have been delivered by the Company to the other parties thereto or their lawful representatives, either by physical delivery or by such other means as the parties thereto have agreed shall constitute delivery as a factual matter, and that no such delivery was subject to any condition or escrow which has not been satisfied.

The opinions hereinafter expressed are limited to the laws of the Province including the federal laws of Canada applicable therein as of the date of this opinion letter and we express no opinion as to the laws of any other jurisdiction. We assume no responsibility to advise you or update this opinion in the event of any changes in laws or facts.

Based and relying on the foregoing and subject to the assumptions, limitations and qualifications set out herein, we are of the opinion that:

 

1.	The Company is an unlimited company duly amalgamated and existing under the laws of the Province of Nova Scotia. The Company is registered to carry on business under the Corporations Registration Act (Nova Scotia) and such registration has not been revoked.

 

2.	The Company has all necessary corporate power and capacity to execute and deliver the Documents and to issue the Company Guarantee, and to perform its obligations under the Documents.

 

3.	The Company has taken all necessary corporate action to authorize the execution and delivery of the Documents and the issuance of the Company Guarantee.

 

4.	To the extent that such matters are governed by the corporate laws of the Province, the Documents have been duly executed and delivered by the Company.

This opinion is limited to the matters referred to herein and shall not be construed as extending to any other matter or document not referred to herein. Except as set out below, this opinion may not be disclosed to any other person without our prior written consent.

We hereby consent to the filing of this opinion as an exhibit to the Current Report on Form 8-K of the Parent filed with the US Commission as of the date hereof and the incorporation thereof into the Registration Statement. In giving such consent, we do not thereby admit that we come within the category of persons whose consent is required under Section 7 of the US Act or the Rules and Regulations of the US Commission thereunder.

Yours very truly,

STEWART MCKELVEY

/s/ Stewart McKelvey

 

3

Exhibit 8.1

 

The Atlantic Building

950 F Street, NW

Washington, DC 20004-1404

202-239-3300 | Fax: [phone]

September 12, 2024

Americold Realty Trust, Inc.

Americold Realty Operating Partnership, L.P.

Americold Realty Operations, Inc.

10 Glenlake Parkway

Suite 600 South Tower

Atlanta, GA 30328

Ladies and Gentlemen:

We have acted as counsel for Americold Realty Trust, Inc., a Maryland corporation (the “Company”), Americold Realty Operating Partnership, L.P., a Delaware limited partnership (the “Operating Partnership”), Americold Realty Operations, Inc., a Delaware corporation (the “Limited Partner”), and the subsidiaries of the Operating Partnership listed on Schedule A attached hereto (the “Subsidiary Guarantors,” and together with the Limited Partner and the Company, the “Guarantors”), in connection with the registration under the Securities Act of 1933, as amended (the “Securities Act”), and the rules and regulations of the Securities and Exchange Commission (the “Commission”) thereunder, of $500,000,000 aggregate principal amount of the Operating Partnership’s 5.409% notes due 2034 (the “Notes”) that may be sold by the Operating Partnership pursuant to the Underwriting Agreement, dated September 5, 2024 (the “Underwriting Agreement”), among the Operating Partnership, the Guarantors, and BofA Securities, Inc., Citigroup Global Markets Inc., and J.P. Morgan Securities LLC, as underwriters and representatives of the other underwriters named in the Underwriting Agreement.

You have requested our opinion regarding (i) the qualification of the Company as a real estate investment trust (a “REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”), and (ii) the statements in the Registration Statement and the Prospectus (as defined below) under the caption “Material U.S. Federal Income Tax Considerations” to the extent they describe applicable U.S. federal income tax law.

In rendering the opinion expressed herein, we have reviewed (i) the Registration Statement on Form S-3 (Registration Nos. 333-270664 and 333-270664-01) filed by the Company and the Operating Partnership under the Securities Act on March 17, 2023, covering the public offering and sale of the Notes (including the information deemed to be a part thereof pursuant to Rule 430B under the Securities Act) (the “Original Registration Statement”), (ii) the base prospectus dated March 17, 2023 (the “Base Prospectus”), included in the Original Registration Statement, (iii) the

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September 12, 2024

Page 2

 

post-effective amendment No. 1 to the Original Registration Statement dated September 3, 2024, filed by the Operating Partnership and the Guarantors under the Securities Act (the “Post-Effective Amendment” and together with the Original Registration Statement, the “Registration Statement”), (iv) the prospectus supplement dated September 5, 2024, filed by the Operating Partnership and the Company pursuant to Rule 424(b) under the Securities Act (the “Prospectus Supplement” together with the Base Prospectus, the “Prospectus”), and (v) the Underwriting Agreement. In rendering the opinion expressed herein, we have reviewed and relied upon, without independent investigation thereof, the analyses of qualifying income and assets prepared by the Company, the Closing Agreement between the Company and the Commissioner of Internal Revenue dated December 21, 2017 (the “Closing Agreement”), the Request for Closing Agreement dated November 16, 2016 and Exhibits attached thereto (together, the “Request for Closing Agreement”), and all documents and correspondence submitted to the U.S. Internal Revenue Service (“IRS”) in connection therewith, the representations of the Company contained in an officer’s certificate delivered to us on or about the date hereof (the “Officer’s Certificate”), and such other documents as we have deemed appropriate. In our examination of documents, we have assumed, with your consent, that all documents submitted to us are authentic originals, or if submitted as photocopies or telecopies, that they faithfully reproduce the originals thereof, that all such documents have been or will be duly executed to the extent required, that all representations and statements set forth in such documents are true and correct, that no material facts were omitted from the Request for Closing Agreement or the Officer’s Certificate, and that all obligations imposed by any such documents on the parties thereto have been or will be performed or satisfied in accordance with their terms. We also have obtained such additional information and representations as we have deemed relevant and necessary through consultation with officers of the Company.

Based on the foregoing, and subject to the assumptions, qualifications, and limitations set forth herein, we are of the opinion that:

(1) The Company has been organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code for each of its taxable years ended December 31, 2020, through December 31, 2023, and the Company’s organization and current and proposed method of operation will enable it to meet the requirements for qualification and taxation as a REIT for the taxable year ending December 31, 2024, and future taxable years.

(2) The statements set forth in the Registration Statement and the Prospectus under the caption “Material U.S. Federal Income Tax Considerations,” insofar as they purport to constitute summaries of matters of U.S. federal income tax law and regulations or legal conclusions with respect thereto, constitute accurate summaries of the matters described therein in all material respects.

The opinion expressed herein is based upon the current provisions of the Code, the U.S. Treasury Regulations promulgated thereunder, the Closing Agreement, current administrative positions of the IRS, and existing judicial decisions, any of which could be changed at any time, possibly on a retroactive basis. Any such changes could adversely affect the opinion rendered herein and the tax consequences to the Company. In addition, as noted above, our opinion is based solely on the documents that we have examined, the additional information that we have obtained

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September 12, 2024

Page 3

 

through consultation with officers of the Company and the representations that have been made to us, and the factual representations made to the IRS in the Request for Closing Agreement, and cannot be relied upon if any of the facts contained in such documents or in such additional information is, or later becomes, inaccurate, or if any of the representations made to us, is, or later becomes, inaccurate or incomplete in any material respect, or if any of the factual representations made to the IRS in the Request for Closing Agreement or in the Closing Agreement (including its recitals) is inaccurate or incomplete in any material respect. We are not aware, however, of any facts or circumstances contrary to or inconsistent with the information, assumptions, and representations upon which we have relied for purposes of this opinion. Our opinion is not binding on the IRS or any court. Accordingly, no complete assurance can be given that the IRS will not challenge our opinion or that a court will not agree with the IRS.

Our opinion is limited to the tax matters specifically covered thereby. We have not undertaken to review the Company’s compliance with the REIT requirements on a continuing basis. Accordingly, no assurance can be given that the actual results of the Company’s operations, the sources of its income, the nature of its assets, the level of its distributions to shareholders, and the diversity of its share ownership in any given taxable year will satisfy the requirements under the Code for qualification and taxation as a REIT.

The Company’s status as a REIT at any time during the current year and subsequent years is dependent upon, among other things, the Company meeting the requirements of Sections 856 through 860 of the Code throughout such year and for the year as a whole. Accordingly, because the Company’s satisfaction of such requirements will depend upon future events, including the final determination of financial and operational results, it is not possible to assure that the Company will satisfy the requirements to qualify as a REIT in any particular taxable years. In addition, our opinions do not preclude the possibility that the Company may have to utilize one or more of the various “savings provisions” under the Code and Treasury Regulations that would permit the Company to cure certain violations of the requirements for qualification and taxation as a REIT, including a “reasonable cause” provision that cures a failure to comply with the REIT gross income tests if the Company reasonably relied on a reasoned opinion of a tax advisor in characterizing an item of gross income for purposes of such tests and disclosed such item of income on its tax return. Utilizing such savings provisions could require the Company to pay significant penalty or excise taxes.

This opinion is given as of the date hereof, and we assume no obligation to advise you after the date hereof of facts or circumstances that come to our attention or changes in law that occur which could affect this opinion.

This opinion letter is provided to you for your use solely in connection with the offering of the Notes described herein and may not be used, circulated, quoted, or otherwise referred to for any other purpose without our express written consent or used in any other transaction or context. No opinion other than that expressly contained herein may be inferred or implied.

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September 12, 2024

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We hereby consent to the filing of this opinion letter as Exhibit 8.1 to the Company’s Form 8-K, filed with the Commission on September 12, 2024. In giving this consent, we do not thereby admit that we are an “expert” within the meaning of the Securities Act.

 

Very truly yours,

/s/ Alston & Bird LLP

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September 12, 2024

Page 5

 

SCHEDULE A

Subsidiary Guarantors

 

1.

Americold Australian Holdings Pty Ltd

 

2.

Icecap Properties NZ Limited

 

3.

Nova Cold Logistics ULC

Document and Entity Information	Sep. 12, 2024
Cover [Abstract]
Entity Registrant Name	AMERICOLD REALTY TRUST
Amendment Flag	false
Entity Central Index Key	0001455863
Document Type	8-K
Document Period End Date	Sep. 12, 2024
Entity Incorporation State Country Code	MD
Entity File Number	001-34723
Entity Tax Identification Number	93-0295215
Entity Address, Address Line One	10 Glenlake Parkway
Entity Address, Address Line Two	South Tower
Entity Address, Address Line Three	Suite 600
Entity Address, City or Town	Atlanta
Entity Address, State or Province	GA
Entity Address, Postal Zip Code	30328
City Area Code	(678)
Local Phone Number	441-1400
Written Communications	false
Soliciting Material	false
Pre Commencement Tender Offer	false
Pre Commencement Issuer Tender Offer	false
Security 12b Title	Common Stock, $0.01 par value per share
Trading Symbol	COLD
Security Exchange Name	NYSE
Entity Emerging Growth Company	false

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