exhibit412031notesindent






                                                                                                 Healthcare Trust of America Holdings, LP, as Issuer                     Healthcare Trust of America, Inc., as Guarantor                       U.S. Bank National Association, as Trustee                                                                              INDENTURE                                     Dated as of                                September 28, 2020                                                                       2.000% Senior Notes due 2031                                                 DM_US 172750087-7.111690.0021 





 






                             TABLE OF CONTENTS                                             Section                                                                  Page                                         ARTICLE 1                                   DEFINITIONS   Section 1.01. Definitions ..............................................................................................................  1                                     ARTICLE 2     ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES  Section 2.01.  Designation Amount and Issue of Notes ................................................................ 8   Section 2.02.  Form of Notes ........................................................................................................ 9   Section 2.03.  Date and Denomination of Notes; Payments of Interest ..................................... 10   Section 2.04.  Execution of Notes ............................................................................................... 11   Section 2.05.  Note Registrar and Paying Agent. ....................................................................... 11   Section 2.06.  Exchange and Registration of Transfer of Notes; Restrictions on Transfer. .......  12   Section 2.07.  Mutilated, Destroyed, Lost or Stolen Notes ......................................................... 17   Section 2.08. Temporary Notes ..................................................................................................  18   Section 2.09.  Cancellation of Notes ...........................................................................................  18   Section 2.10. CUSIP Numbers ...................................................................................................  18   Section 2.11.  Issuance of Additional Notes ............................................................................... 18                                     ARTICLE 3                              REDEMPTION OF NOTES   Section 3.01.  Optional Redemption of Notes. ............................................................................ 19   Section 3.02.  Notice of Optional Redemption; Selection of Notes ............................................ 19   Section 3.03.  Payment of Notes Called for Redemption by the Issuer ...................................... 21   Section 3.04. Sinking Fund ........................................................................................................ 21                                     ARTICLE 4                       CERTAIN COVENANTS OF THE ISSUER   Section 4.01.  Payment of Principal, Premium and Interest ...................................................... 21   Section 4.02.  Maintenance of Office or Agency ........................................................................ 21   Section 4.03.  Appointments to Fill Vacancies in Trustee’s Office ............................................ 22   Section 4.04.  Provisions as to Paying Agent. ............................................................................ 22   Section 4.05. Existence .............................................................................................................. 23   Section 4.06. Reports. ................................................................................................................ 23   Section 4.07.  Stay, Extension and Usury Laws ..........................................................................  24   Section 4.08. Compliance Certificate ........................................................................................ 24                                         i      DM_US 172750087-7.111690.0021 





 






                             TABLE OF CONTENTS                                     (continued)   Section                                                                  Page       Section 4.09.  Limitations on Incurrence of Debt. ...................................................................... 25  Section 4.10. Insurance.............................................................................................................. 26  Section 4.11.  Additional Interest Notice .................................................................................... 26                                     ARTICLE 5       NOTEHOLDERS’ LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE  Section 5.01. Noteholders’ Lists ................................................................................................ 27  Section 5.02.  Preservation and Disclosure of Lists. .................................................................. 27  Section 5.03.  Reports by Trustee. .............................................................................................. 27                                     ARTICLE 6     REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT  Section 6.01.  Events of Default ..................................................................................................  28  Section 6.02.  Payments of Notes on Default; Suit Therefor ...................................................... 30  Section 6.03.  Application of Monies Collected by Trustee ........................................................ 32  Section 6.04.  Proceedings by Noteholders ................................................................................ 32  Section 6.05.  Proceedings by Trustee ........................................................................................  33  Section 6.06.  Remedies Cumulative and Continuing .................................................................  33  Section 6.07.  Direction of Proceedings and Waiver of Defaults by Majority of              Noteholders .......................................................................................................... 33  Section 6.08.  Notice of Defaults ................................................................................................ 34  Section 6.09.  Undertaking to Pay Costs .................................................................................... 34                                     ARTICLE 7                                   THE TRUSTEE  Section 7.01.  Duties and Responsibilities of Trustee .................................................................  35  Section 7.02.  Reliance on Documents, Opinions, etc ................................................................ 36  Section 7.03. No Responsibility for Recitals, etc ....................................................................... 37  Section 7.04.  Trustee, Paying Agents or Registrar May Own Notes ......................................... 37  Section 7.05.  Monies to Be Held in Trust .................................................................................. 37  Section 7.06.  Compensation and Expenses of Trustee .............................................................. 38  Section 7.07.  Officers’ Certificate as Evidence ......................................................................... 38  Section 7.08.  Conflicting Interests of Trustee ............................................................................  38  Section 7.09.  Eligibility of Trustee ............................................................................................ 39                                          ii      DM_US 172750087-7.111690.0021 





 






                             TABLE OF CONTENTS                                     (continued)   Section                                                                  Page       Section 7.10.  Resignation or Removal of Trustee. .....................................................................  39   Section 7.11.  Acceptance by Successor Trustee ........................................................................ 40  Section 7.12. Succession by Merger .......................................................................................... 41  Section 7.13.  Preferential Collection of Claims ........................................................................ 41                                     ARTICLE 8                                THE NOTEHOLDERS   Section 8.01.  Action by Noteholders ..........................................................................................  41   Section 8.02.  Proof of Execution by Noteholders ...................................................................... 41   Section 8.03. Absolute Owners .................................................................................................. 42   Section 8.04.  Issuer-owned Notes Disregarded .........................................................................  42   Section 8.05.  Revocation of Consents; Future Holders Bound ................................................. 42                                     ARTICLE 9                           SUPPLEMENTAL INDENTURES  Section 9.01.  Supplemental Indentures Without Consent of Noteholders ................................. 43  Section 9.02.  Supplemental Indenture With Consent of Noteholders ........................................ 44  Section 9.03.  Effect of Supplemental Indenture .........................................................................  45  Section 9.04. Notation on Notes ................................................................................................ 45  Section 9.05.  Evidence of Compliance of Supplemental Indenture to Be Furnished to              Trustee.................................................................................................................. 45                                    ARTICLE 10            CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE  Section 10.01. Issuer May Consolidate on Certain Terms .......................................................... 45  Section 10.02. Issuer Successor to Be Substituted .......................................................................  46   Section 10.03. Guarantor May Consolidate on Certain Terms ...................................................  46   Section 10.04. Guarantor Successor to Be Substituted ............................................................... 47   Section 10.05. Assumption by Guarantor .................................................................................... 47                                    ARTICLE 11                   SATISFACTION AND DISCHARGE OF INDENTURE  Section 11.01. Discharge of Indenture ........................................................................................ 48  Section 11.02. Deposited Monies to Be Held in Trust by Trustee ............................................... 48  Section 11.03. Paying Agent to Repay Monies Held ................................................................... 49  Section 11.04. Return of Unclaimed Monies ............................................................................... 49                                         iii      DM_US 172750087-7.111690.0021 





 






                            TABLE OF CONTENTS                                    (continued)  Section                                                                  Page     Section 11.05. Reinstatement ....................................................................................................... 49                                   ARTICLE 12                LEGAL DEFEASANCE AND COVENANT DEFEASANCE  Section 12.01. Option to Effect Legal Defeasance or Covenant Defeasance ..............................  49  Section 12.02. Legal Defeasance and Discharge ........................................................................ 49  Section 12.03. Covenant Defeasance. ..........................................................................................  50  Section 12.04. Conditions to Legal or Covenant Defeasance. .................................................... 50  Section 12.05. Deposited Money and Government Securities to be Held in Trust; Other              Miscellaneous Provisions. ................................................................................... 52  Section 12.06. Repayment to Issuer. ............................................................................................ 52  Section 12.07. Reinstatement. ...................................................................................................... 52                                   ARTICLE 13   IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS  Section 13.01. Indenture and Notes Solely Corporate Obligations............................................. 53                                   ARTICLE 14                        MEETINGS OF HOLDERS OF NOTES  Section 14.01. Purposes for Which Meetings May Be Called ..................................................... 53  Section 14.02. Call, Notice and Place of Meetings. .................................................................... 53  Section 14.03. Persons Entitled to Vote at Meetings ...................................................................  54  Section 14.04. Quorum; Action ................................................................................................... 54  Section 14.05. Determination of Voting Rights; Conduct and Adjournment of Meetings ...........  55  Section 14.06. Counting Votes and Recording Action of Meetings ............................................. 55                                   ARTICLE 15                                  GUARANTEE  Section 15.01. Guarantee ............................................................................................................ 56  Section 15.02. Execution and Delivery of Guarantee ..................................................................  57  Section 15.03. Limitation of Guarantor’s Liability; Certain Bankruptcy Events. .......................  57  Section 15.04. Release of Guarantor of Guarantee Obligations. ................................................  58                                   ARTICLE 16                          MISCELLANEOUS PROVISIONS  Section 16.01. Provisions Binding on Issuer’s and Guarantor’s Successors ............................. 58  Section 16.02. Official Acts by Successor Corporation ...............................................................  58                                         iv    DM_US 172750087-7.111690.0021 





 






                            TABLE OF CONTENTS                                    (continued)  Section                                                                  Page     Section 16.03. Addresses for Notices, etc .................................................................................... 58  Section 16.04. Governing Law..................................................................................................... 60  Section 16.05. Evidence of Compliance with Conditions Precedent, Certificates to              Trustee.................................................................................................................. 60  Section 16.06. Legal Holidays ..................................................................................................... 60  Section 16.07. Trust Indenture Act .............................................................................................. 61  Section 16.08. No Security Interest Created ................................................................................  61  Section 16.09. Benefits of Indenture ............................................................................................ 61  Section 16.10. Table of Contents, Headings, etc ......................................................................... 61  Section 16.11. Authenticating Agent ............................................................................................  61  Section 16.12. Execution in Counterparts ................................................................................... 62  Section 16.13. Severability .......................................................................................................... 62    Exhibit A — Form of Note ........................................................................................................ A-1  Exhibit B — Form of Guarantee ................................................................................................ B-1                                            v    DM_US 172750087-7.111690.0021 





 






                            CROSS REFERENCE TABLE*   Trust Indenture Act Section                          Indenture Section  310(a)(1) 7.09  (a)(2) 7.09  (a)(3) N.A.  (a)(4) N.A.  (a)(5) N.A.  (b) 7.08, 7.10  (c) N.A.  311(a) 7.13  (b) 7.13  (c) N.A.  312(a) 5.01  (b) 5.02  (c) 5.02  313(a) 5.03  (b) 5.03  (c) 5.03  (d) 5.03  314(a) 4.06, 4.08  (b) N.A.  (c)(1) 16.05  (c)(2) 16.05  (c)(3) N.A.  (d) N.A.  (e) 16.05  (f) N.A.  315(a) 7.01  (b) 6.08  (c) 7.01  (d) 7.01  (e) 6.09  316(a)(1)(A) 6.07  (a)(1)(B) 6.07  (a)(2) N.A.  (b) N.A.  (c) N.A.  317(a)(1) 6.02  (a)(2) 6.02  (b) 11.03  318(a) N.A.    N.A. means not applicable.  *  This Cross-Reference Table is not part of the Indenture.                                        vi    DM_US 172750087-7.111690.0021 





 






                                      INDENTURE         INDENTURE dated as of September 28, 2020 among Healthcare Trust of America   Holdings, LP, a Delaware limited partnership (hereinafter called the “Issuer”), Healthcare Trust   of America, Inc., a Maryland corporation (hereinafter called the “Guarantor” or, in its capacity   as the sole general partner of the Issuer, the “General Partner”), each having its principal office   at 16435 N. Scottsdale Road, Suite 320, Scottsdale, Arizona 85254, and U.S. Bank National   Association, as trustee hereunder (hereinafter called the “Trustee”).         Each party agrees as follows for the benefit of the other parties and for the equal and   ratable benefit of the holders of the Issuer’s 2.000% Senior Notes due 2031 (hereinafter called   the “Notes”) guaranteed by the Guarantor.                                     ARTICLE 1                                   DEFINITIONS         Section 1.01. Definitions.  The terms defined in this Section 1.01 (except as herein   otherwise expressly provided or unless the context otherwise requires) for all purposes of this  Indenture and of any indenture supplemental hereto shall have the respective meanings specified  in this Section 1.01.  All other terms used in this Indenture that are defined in the Trust Indenture   Act (as defined below) or which are by reference therein defined in the Securities Act (as defined   below) (except as herein otherwise expressly provided or unless the context otherwise requires)   shall have the respective meanings assigned to such terms in the Trust Indenture Act and in the   Securities Act as in force at the date of the execution of this Indenture.  The words “herein,”  “hereof,” “hereunder” and words of similar import refer to this Indenture as a whole and not to   any particular Article, Section or other Subdivision.  The terms defined in this Article include the   plural as well as the singular.         “Acquired Debt” means Debt of a Person (1) existing at the time such Person becomes a   Subsidiary or (2) assumed in connection with the acquisition of assets from such Person, in each   case, other than Debt incurred in connection with, or in contemplation of, such Person becoming   a Subsidiary or such acquisition.  Acquired Debt shall be deemed to be incurred on the date of   the related acquisition of assets from any Person or the date the acquired Person becomes a   Subsidiary.         “Additional Interest” has the meaning specified in Section 6.01(g) hereof.         “Additional Interest Notice” has the meaning specified in Section 4.11 hereof.         “Additional Notes” means additional Notes (other than the Initial Notes) issued under   this Indenture in accordance with Sections 2.04, 2.11 and 4.09 hereof, as part of the same series   as the Initial Notes.         “Adjusted Treasury Rate” means, on any Redemption Date, the rate per year, as   determined by the Quotation Agent, equal to:                                                     1   DM_US 172750087-7.111690.0021 





 






                (1)    the yield, under the heading that represents the weekly average yield   (being, if not reported as a weekly average yield, the average of the five most recent daily   reported yields), appearing in the most recently published statistical release designated “H.15” or   any successor publication that is published weekly by the Board of Governors of the Federal   Reserve System and which establishes yields on actively traded United States Treasury securities   adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity   corresponding to the Comparable Treasury Issue; provided that if no maturity is within three   months before or after the Remaining Life of the Notes, yields for the two published maturities   most closely corresponding to the Comparable Treasury Issue will be determined and the   Adjusted Treasury Rate will be interpolated or extrapolated from those yields on a straight-line   basis rounding to the nearest month; or               (2)   if that release, or any successor release, is not published during the week   preceding the calculation date or does not contain such yields, the rate per year equal to the   semiannual equivalent yield to maturity of the Comparable Treasury Issue, calculated using a   price for the Comparable Treasury Issue (expressed as a percentage of its principal amount)   equal to the Comparable Treasury Price for that Redemption Date.   The Adjusted Treasury Rate will be calculated at 5:00 p.m. (New York City time) on the third   Business Day preceding the date of the notice of redemption by the Quotation Agent.         “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.        “Agent” means any Note Registrar, co-registrar, Paying Agent or additional paying  agent.        “Annual Debt Service Charge” as of any date means the amount of interest expense  determined on a consolidated basis in accordance with generally accepted accounting principles.        “Applicable Procedures” means, with respect to any transfer or exchange of or for  beneficial interests in any Global Note, the rules and procedures of the Depositary, Euroclear and  Clearstream that apply to such transfer or exchange.        “Authentication Order” has the meaning specified in Section 2.01 hereof.         “Bankruptcy Law” means Title 11, U.S. Code or any similar federal, state, or foreign   law for the relief of debtors.         “Benefited Party” has the meaning specified in Section 15.01 hereof.         “Board of Directors” means the board of directors of the General Partner or a committee   of such board duly authorized to act for it hereunder.    2      DM_US 172750087-7.111690.0021 





 






           “Business Day” means, with respect to any Note, any day, other than a Saturday, Sunday  or any other day on which banking institutions in New York, New York are authorized or  obligated by law or executive order to close.        “Clearstream” means Clearstream Banking S.A.        “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 Trust Indenture Act, then the body performing such duties at such time.        “Comparable Treasury Issue” means the United States Treasury security selected by   the Quotation Agent as having an actual or interpolated maturity comparable to the Remaining   Life that would be utilized, at the time of selection and in accordance with customary financial   practice, in pricing new issues of corporate debt securities of comparable maturity to the   Remaining Life.         “Comparable Treasury Price” means, with respect to any Redemption Date, (1) the   average of the Reference Treasury Dealer Quotations for such Redemption Date, after excluding   the highest and lowest of such Reference Treasury Dealer Quotations, or (2) if the Trustee   obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such   Quotations.         “Consolidated Income Available for Debt Service” means, for any period, Earnings   from Operations of Issuer and its Subsidiaries plus amounts which have been deducted, and   minus amounts which have been added, for the following (without duplication):  (1) Annual   Debt Service Charge of Issuer and its Subsidiaries, (2) provision for taxes of Issuer and its   Subsidiaries based on income, (3) provisions for gains and losses on properties and depreciation   and amortization, (4) increases in deferred taxes and other non-cash items, (5) depreciation and   amortization with respect to interests in joint venture and partially owned entity investments,   (6) the effect of any charge resulting from a change in accounting principles in determining   Earnings from Operations for such period, and (7) amortization of deferred charges.         “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   the address set forth in Section 16.03 hereof.         “Covenant Defeasance” has the meaning specified in Section 12.03 hereof.         “CUSIP” means the Committee on Uniform Securities Identification Procedures.         “Custodian” means U.S. Bank National Association, as custodian with respect to the   Notes in global form, or any successor entity thereto.         “Debt” means any of Issuer’s or any of its Subsidiaries’ indebtedness, whether or not   contingent, in respect of (without duplication) (1) borrowed money evidenced by bonds, notes,   debentures or similar instruments, (2) indebtedness secured by any mortgage, pledge, lien,   charge, encumbrance or any security interest existing on property owned by Issuer or any of its    3      DM_US 172750087-7.111690.0021 





 






     Subsidiaries, but only to the extent of the lesser of (a) the amount of indebtedness so secured and   (b) the fair market value (determined in good faith by the board of directors of such Person or, in   the case of Issuer or one of its Subsidiaries, by the Board of Directors) of the property subject to   such mortgage, pledge, lien, charge, encumbrance or security interest, (3) the 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 or   services, except any such balance that constitutes an accrued expense or trade payable, or all  conditional sale obligations or obligations under any title retention agreement, or (4) any lease of  property by Issuer or any of its Subsidiaries as lessee which is reflected on Issuer’s consolidated   balance sheet as a financing lease in accordance with generally accepted accounting principles;   but only to the extent, in the case of items of indebtedness under (1) through (3) above, that any   such items (other than letters of credit) would appear as a liability on Issuer’s consolidated   balance sheet in accordance with generally accepted accounting principles.  The term “Debt”   also includes, to the extent not otherwise included, any obligation of Issuer or any of its   Subsidiaries to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes   of collection in the ordinary course of business or for the purposes of guaranteeing the payment   of all amounts due and owing pursuant to leases to which Issuer or any of its Subsidiaries are a  party and have assigned its or their interest, provided that such assignee of Issuer or its   Subsidiary is not in default of any amounts due and owing under such leases), Debt of another   Person (other than Issuer or any of its Subsidiaries) (it being understood that Debt shall be   deemed to be incurred by Issuer or any of its Subsidiaries whenever Issuer or such Subsidiary   shall create, assume, guarantee or otherwise become liable in respect thereof). In the case of   items of indebtedness under (4) above, the term “Debt” will exclude any lease of property by   Issuer or any of its Subsidiaries as lessee which is reflected on Issuer’s consolidated balance   sheet as an operating lease in accordance with generally accepted accounting principles.         “Default” means any event which, after notice or the lapse of time, or both, would   become, an Event of Default.         “Defaulted Interest” has the meaning specified in Section 2.03 hereof.         “Definitive Note” means a certificated Note registered in the name of the Holder thereof   and issued in accordance with Section 2.06 hereof, 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 the clearing agency registered under the Exchange Act that is   designated to act as the Depositary for the Global Notes.  DTC shall be the initial Depositary,   until a successor shall have been appointed and become such pursuant to the applicable   provisions of this Indenture, and thereafter, “Depositary” shall mean or include such successor.         “DTC” means The Depository Trust Company.         “Earnings from Operations” means, for any period, net income or loss of Issuer and its   Subsidiaries, excluding (1) provisions for gains and losses on sales of investments or joint   ventures; (2) provisions for gains and losses on disposition of discontinued operations;   (3) extraordinary and non-recurring items; and (4) impairment charges, property valuation losses   and non-cash charges necessary to record interest rate contracts at fair value; plus amounts    4      DM_US 172750087-7.111690.0021 





 






   received as rent under leases which are accounted for as financing arrangements net of related  interest income, as reflected in the consolidated financial statements of Issuer and its Subsidiaries  for such period determined in accordance with generally accepted accounting principles.        “EDGAR” has the meaning specified in Section 4.06(a) hereof.        “Euroclear” means Euroclear Bank SA/NV, as operator of the Euroclear system.        “Event of Default” means any event specified in Section 6.01 hereof as an Event of  Default.        “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.        “General Partner” means the corporation named as the “General Partner” in the first  paragraph of this Indenture, and, subject to the provisions of Article 10 hereof, shall include its  successors and assigns.        “Global Note Legend” means the legend set forth in Section 2.06(f) hereof, which is  required to be placed on all Global Notes issued under this Indenture.        “Global Notes” means 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 this Indenture.        “Government Securities” means direct obligations of, or obligations guaranteed by, the  United States of America, and the payment for which the United States pledges its full faith and  credit.        “Guarantee” means the full and unconditional guarantee provided by the Guarantor in  respect of the Notes as made applicable to the Notes in accordance with the provisions of  Section 15.01 hereof.        “Guarantee Obligations” has the meaning specified in Section 15.01 hereof.        “Guarantor” means the corporation named as the “Guarantor” in the first paragraph of  this Indenture, and, subject to the provisions of Article 10 hereof, shall include its successors and  assigns.        “Indenture” means this instrument as originally executed or, if amended or  supplemented as herein provided, as so amended or supplemented.        “Indirect Participant” means a Person who holds a beneficial interest in a Global Note  through a Participant.        “Initial Notes” means the first $800,000,000 aggregate principal amount of Notes issued  under this Indenture on the date hereof.    5    DM_US 172750087-7.111690.0021 





 






           “Intercompany Debt” means Debt to which the only parties are any of Issuer, Guarantor   and any of their Subsidiaries; provided, however, that with respect to any such Debt of which  Issuer or Guarantor is the borrower, such Debt is subordinate in right of payment to the Notes.         “interest” means, when used with reference to the Notes, any interest payable under the   terms of the Notes.         “Issuer” means the limited partnership named as the “Issuer” in the first paragraph of   this Indenture, and, subject to the provisions of Article 10 hereof, shall include its successors and   assigns.         “Legal Defeasance” has the meaning specified in Section 12.02 hereof.         “Maturity Date” means March 15, 2031.         “Note” or “Notes” means any Note or Notes, as the case may be, authenticated and   delivered under this Indenture, including the Initial Notes, any Additional Notes and any Global   Note.         “Note Register” has the meaning specified in Section 2.05 hereof.         “Note Registrar” has the meaning specified in Section 2.05 hereof.         “Noteholder” or “Holder” as applied to any Note, or other similar terms (but excluding   the term “beneficial holder”), means any Person in whose name at the time a particular Note is   registered on the Note Registrar’s books.         “Officer” means, with respect to any Person, any person holding any of the following   positions with such Person, or, in the case of a Person that is a partnership, the general partner of  such Person:  the Chairman of the Board, the Chief Executive Officer, the President, any Vice  President (whether or not designated by a number or numbers or word or words added before or  after the title “Vice President”), the Chief Financial Officer, the Treasurer and the Secretary.        “Officers’ Certificate” means, with respect to any Person, a certificate signed by any  two Officers or by one such Officer and any Assistant Treasurer or Assistant Secretary of such  Person or, in the case of a Person that is a partnership, the general partner of such Person.        “Opinion of Counsel” means, with respect to any Person, an opinion in writing signed  by legal counsel, who may be an employee of or counsel to such Person, or other counsel  reasonably acceptable to the Trustee.        “outstanding,” when used with reference to Notes and subject to the provisions of  Section 8.04 hereof, means, as of any particular time, all Notes authenticated and delivered by   the Trustee under this Indenture, except:         (1)   Notes theretofore canceled by the Trustee or delivered to the Trustee for   cancellation;         (2)   Notes, or portions thereof, (i) for the redemption of which monies in the necessary   amount shall have been deposited in trust with the Trustee or with any Paying Agent (other than    6      DM_US 172750087-7.111690.0021 





 






     the Issuer or the Guarantor) or (ii) which shall have been otherwise discharged in accordance   with Article 11 hereof;         (3)   Notes in lieu of which, or in substitution for which, other Notes shall have been   authenticated and delivered pursuant to the terms of Section 2.07 hereof; and         (4)   Notes paid or redeemed pursuant to Article 3 hereof.         “Par Call Date” means December 15, 2030.         “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 DTC, shall include Euroclear and Clearstream).         “Paying Agent” has the meaning specified in Section 2.05 hereof.         “Person” means a corporation, an association, a partnership, a limited liability company,   an individual, a joint venture, a joint stock company, a trust, an unincorporated organization or a   government or an agency or a political subdivision thereof.         “Predecessor Note” of any particular Note means every previous Note evidencing all or   a portion of the same debt as that evidenced by such particular Note, and, for the purposes of this   definition, any Note authenticated and delivered under Section 2.07 hereof in lieu of a lost,   destroyed or stolen Note shall be deemed to evidence the same debt as the lost, destroyed or  stolen Note that it replaces.        “premium” means any premium payable under the terms of the Notes.        “Primary Treasury Dealer” means a primary U.S. Government securities dealer.        “Prospectus” means the Issuer’s and the Guarantor’s prospectus dated September 14,  2020 relating to the initial offering of the  Notes.        “Quotation Agent” means the Reference Treasury Dealer appointed by the Issuer.        “Record Date” has the meaning specified in Section 2.03 hereof.         “Redemption Date” means, with respect to any Note or portion thereof to be redeemed   in accordance with the provisions of Section 3.01 hereof, the date fixed for such redemption in   accordance with the provisions of Section 3.01 hereof.         “Redemption Price” has the meaning provided in Section 3.01 hereof.         “Reference Treasury Dealer” means (1) Wells Fargo Securities, LLC, its successor or   one of its affiliates, (2) Jefferies LLC, its successor or one of its affiliates, (3) J.P. Morgan   Securities LLC, its successor or one of its affiliates, (4) a Primary Treasury Dealer selected by   U.S. Bancorp Investments, Inc., its successor or one of its affiliates and (5) any one other   Primary Treasury Dealer selected by the Issuer; provided, however, that if any of the Reference   Treasury Dealers referred to in clause (1) through (4) above ceases to be a Primary Treasury   Dealer, the Issuer will substitute therefor another Primary Treasury Dealer.    7      DM_US 172750087-7.111690.0021 





 






         “Reference Treasury Dealer Quotations” means, with respect to each Reference  Treasury Dealer and any Redemption Date, the average, as determined by Issuer, of the bid and  asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its  principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 5:00  p.m., New York City time, on the third Business Day preceding such date of the notice of  redemption.        “Remaining Life” means the remaining term of the Notes to be redeemed, calculated as  if the maturity date of such Notes were the Par Call Date.        “Responsible Officer” shall mean, when used with respect to the Trustee, any officer  within 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 person’s knowledge of or familiarity  with the particular subject.        “Securities Act” means the Securities Act of 1933, as amended, and the rules and  regulations promulgated thereunder, as in effect from time to time.        “Significant Subsidiary” means any subsidiary which is a “significant subsidiary”  within the meaning of Rule 1-02(w) of Regulation S-X promulgated by the Commission as in  effect on the date hereof.        “Stated Maturity,” with respect to any Note or any installment of principal thereof or  interest thereon, means the date established by or pursuant to this Indenture or such Note as the  fixed date on which the principal of such Note or such installment of principal or interest is due  and payable.        “Subsidiary” means, with respect to any Person, (i) any corporation, association or other  business entity of which more than 50% of the total voting power of shares of capital stock or  other equity interest entitled (without regard to the occurrence of any contingency) to vote in the  election of directors, managers or trustees thereof is at the time owned or controlled, directly or  indirectly, by such Person or one or more of the other subsidiaries of that Person (or a  combination thereof) and (ii) any partnership (a) the sole general partner or managing general  partner of which is such Person or a subsidiary of such Person or (b) the only general partners of  which are such Person or of one or more subsidiaries of such Person (or any combination  thereof).        “Total Assets” as of any date means the sum of (1) Issuer’s and all of its Subsidiaries’  Undepreciated Real Estate Assets and (2) all of Issuer’s and all of its Subsidiaries’ other assets  determined in accordance with generally accepted accounting principles (but excluding  intangibles).        “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in  force at the date of this Indenture; provided, that if the Trust Indenture Act of 1939 is amended  after the date hereof, the term “Trust Indenture Act” shall mean, to the extent required by such  amendment, the Trust Indenture Act of 1939 as so amended.    8    DM_US 172750087-7.111690.0021 





 






         “Trustee” means U.S. Bank National Association, and its successors and any corporation  resulting from or surviving any consolidation or merger to which it or its successors may be a  party and any successor trustee at the time serving as successor trustee hereunder.        “Undepreciated Real Estate Assets” as of any date means the cost (original cost plus  capital improvements) of Issuer’s and its Subsidiaries’ real estate assets, right of use assets  associated with a financing lease in accordance with generally accepted accounting principles on  such date, before depreciation and amortization determined on a consolidated basis in  accordance with generally accepted accounting principles; provided that “Undepreciated Real  Estate Assets” will not include the right of use assets associated with an operating lease in  accordance with generally accepted accounting principles.        “Unencumbered Total Asset Value” as of any date means the sum of (1) those  Undepreciated Real Estate Assets not encumbered by any mortgage, lien, charge, pledge or  security interest and (2) all of Issuer’s and its Subsidiaries’ other assets on a consolidated basis  determined in accordance with generally accepted accounting principles (but excluding  intangibles), in each case which are unencumbered by any mortgage, lien, charge, pledge or  security interest; provided, however, that, in determining Unencumbered Total Asset Value for  purposes of Section 4.09(d) hereof, all investments by the Issuer and any of its Subsidiaries in  unconsolidated joint ventures, unconsolidated limited partnerships, unconsolidated limited  liability companies and other unconsolidated entities accounted for financial reporting purposes  using the equity method of accounting in accordance with generally accepted accounting  principles shall be excluded from Unencumbered Total Asset Value.       “U.S. Person” means a U.S. Person as defined in Rule 902(k) promulgated under the  Securities Act.                                    ARTICLE 2    ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES       Section 2.01. Designation Amount and Issue of Notes.  The Notes shall be designated as  “2.000% Senior Notes due 2031.”  Upon the execution of this Indenture, and from time to time  thereafter, Notes may be executed by the Issuer and delivered to the Trustee for authentication,  and the Trustee shall thereupon authenticate and deliver Notes upon a written order of the Issuer  (an “Authentication Order”), such order signed on behalf of the Issuer by two Officers of the  General Partner or by an Officer of the General Partner and either an Assistant Treasurer or any  Assistant Secretary of the General Partner, without any further action by the Issuer hereunder.        The aggregate principal amount of Notes which may be authenticated and delivered  under this Indenture is unlimited; provided, that upon initial issuance, the aggregate principal  amount of Notes outstanding shall not exceed $800,000,000, except as provided in Sections 2.07  and 2.08 hereof.  The Issuer may, without the consent of the Holders of Notes, issue Additional  Notes from time to time in the future in an unlimited principal amount, subject to compliance  with the terms of this Indenture, including Section 2.11 hereof.        Section 2.02. Form of Notes.  Notes issued in global form will be substantially in the  form of Exhibit A hereto (including the Global Note Legend thereon and the “Schedule of  Exchanges of Interests in the Global Note” attached thereto).  Notes issued in definitive form   9    DM_US 172750087-7.111690.0021 





 






     will be substantially in the form of Exhibit A hereto (but without the Global Note Legend   thereon and without the “Schedule of Exchanges of Interests in the Global Note” attached   thereto). 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 Trustee 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 this Indenture and, to the extent applicable, the Issuer and   the Trustee, by their execution and delivery of this Indenture, expressly agree to such terms and   provisions and to be bound thereby.         Any of the Notes may have such letters, numbers or other marks of identification and   such notations, legends, endorsements or changes as the officers executing the same may   approve (execution thereof to be conclusive evidence of such approval) and as are not   inconsistent with the provisions of this Indenture, or as may be required by the Custodian, the  Depositary or as may be required to comply with any applicable law or with any rule or  regulation made pursuant thereto or with any rule or regulation of any securities exchange or   automated quotation system on which the Notes may be listed, or to conform to usage, or to   indicate any special limitations or restrictions to which any particular Notes are subject.         So long as the Notes are eligible for book-entry settlement with the Depositary, or unless   otherwise required by law, or otherwise contemplated by Section 2.06(b) hereof, all of the Notes   will be represented by one or more Global Notes.  The transfer and exchange of beneficial   interests in any such Global Note shall be effected through the Depositary in accordance with   this Indenture and the applicable procedures of the Depositary.  Except as provided in   Section 2.06(b) hereof, beneficial owners of a Global Note shall not be entitled to have   certificates registered in their names, will not receive or be entitled to receive physical delivery   of certificates in definitive form and will not be considered Holders of such Global Note.         Section 2.03. Date and Denomination of Notes; Payments of Interest.  The Notes shall   be issuable in registered form without coupons in denominations of $2,000 principal amount and   integral multiples of $1,000 in excess thereof.  Each Note shall be dated the date of its   authentication and shall bear interest from the date specified on the face of the form of Note   attached as Exhibit A hereto.  Interest on the Notes shall be computed on the basis of a 360-day   year consisting of twelve 30-day months.         The Person in whose name any Note (or its Predecessor Note) is registered on the Note   Register at 5:00 p.m., New York City time, on any Record Date with respect to any interest   payment date shall be entitled to receive the interest payable on such interest payment date.    Interest shall be payable at the office of the Issuer maintained by the Issuer for such purposes in   the City of St. Paul, Minnesota, which shall initially be an office or agency of the Trustee.  The   Issuer shall pay interest (i) on any Notes in certificated form by check mailed to the address of  the Person entitled thereto as it appears in the Note Register; provided, however, that a Holder of  any Notes in certificated form in the aggregate principal amount of more than $2.0 million may  specify by written notice to the Issuer that it pay interest by wire transfer of immediately   10      DM_US 172750087-7.111690.0021 





 






   available funds to the account specified by the Noteholder in such notice, or (ii) any Global Note  by wire transfer of immediately available funds to the account of the Depositary or its nominee.   If a payment date is not a Business Day, payment shall be made on the next succeeding Business  Day, and no additional interest shall accrue thereon.  The term “Record Date” with respect to  any interest payment date shall mean the March 1 or September 1 preceding the applicable  March 15 or September 15 interest payment date, respectively.        No other payment or adjustment will be made for accrued interest on an exchanged Note.        Any interest on any Note which is payable, but is not punctually paid or duly provided  for, on any March 15 or September 15 (herein called “Defaulted Interest”) shall forthwith cease  to be payable to the Noteholder 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 (1) or (2) below:              (1)   The Issuer may elect to make payment of any Defaulted Interest to the        Persons in whose names the Notes (or their respective Predecessor 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 twenty-five (25)        calendar days after the receipt by the Trustee of such notice, unless the Trustee shall        consent to an earlier date), and at the same time the Issuer shall deposit with the Trustee        an amount of monies equal to the aggregate amount to be paid in respect of such        Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit       on or prior to the date of the proposed payment, such monies 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 fifteen (15) calendar days and not less       than ten (10) calendar days prior to the date of the proposed payment, and not less than       ten (10) calendar days after the receipt by the Trustee of the notice of the proposed       payment (unless the Trustee shall consent to an earlier date).  The Trustee shall promptly       notify the 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 (or sent by electronic transmission), first-class       postage prepaid, to each Holder at its address as it appears in the Note Register, not less       than ten (10) calendar days prior to such special record date (unless the Trustee shall       consent to an earlier date).  Notice of the proposed payment of such Defaulted Interest       and the special record date therefor having been so mailed, such Defaulted Interest shall        be paid to the Persons in whose names the Notes (or their respective Predecessor 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 (2) of this Section 2.03.              (2)   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  11    DM_US 172750087-7.111690.0021 





 






           pursuant to this clause, such manner of payment shall be deemed practicable by the         Trustee.         Section 2.04. Execution of Notes.  The Notes shall be signed, in the name and on behalf  of the Issuer, manually or by facsimile or other electronic imaging means by an Officer of the  General Partner.  The Trustee will, upon receipt of an Authentication Order, authenticate Notes  for issue under this Indenture, including any Additional Notes.  The aggregate principal amount  of Notes outstanding at any time may not exceed the aggregate principal amount of Notes  authorized for issuance by the Issuer pursuant to one or more Authentication Orders, except as  provided in Sections 2.07 and 2.08 hereof.         Only such Notes as shall bear thereon a certificate of authentication substantially in the   form set forth on the form of Note attached as Exhibit A hereto, executed manually by the   Trustee (or an authenticating agent appointed by the Trustee as provided by Section 16.11   hereof), shall be entitled to the benefits of this Indenture or be valid or obligatory for any   purpose.  Such certificate by the Trustee (or such an authenticating agent) upon any Note   executed by the Issuer shall be conclusive evidence that the Note so authenticated has been duly   authenticated and delivered hereunder and that the Holder is entitled to the benefits of this   Indenture.         In case any Officer of the General Partner who shall have signed any of the Notes shall  cease to be such Officer of the General Partner before the Notes so signed shall have been  authenticated and delivered by the Trustee, or disposed of by the Issuer, such Notes nevertheless  may be authenticated and delivered or disposed of as though the person who signed such Notes  had not ceased to be such Officer of the General Partner, and any Note may be signed on behalf  of the Issuer by such persons as, at the actual date of the execution of such Note, shall be the  proper Officers of the General Partner, although at the date of the execution of this Indenture any  such person was not such an Officer of the General Partner.        Section 2.05. Note Registrar and Paying Agent.        The Issuer will maintain an office or agency where Notes may be presented for  registration of transfer or for exchange (“Note Registrar”) and an office or agency where Notes  may be presented for payment (“Paying Agent”).  The Note Registrar will keep a register of the  Notes and of their transfer and exchange (the “Note Register”).  The Issuer may appoint one or  more co-registrars and one or more additional paying agents.  The term “Note Registrar”  includes any co-registrar and the term “Paying Agent” includes any additional paying agent.  The  Issuer may change any Paying Agent or Note Registrar without notice to any Holder.  The Issuer  will notify the Trustee in writing of the name and address of any Agent not a party to this  Indenture.  If the Issuer fails to appoint or maintain another entity as Note Registrar or Paying  Agent, the Trustee shall act as such.  The Issuer or any of its Subsidiaries may act as Paying  Agent or Note Registrar.        The Issuer initially appoints the DTC to act as Depositary with respect to the Global  Notes.        The Issuer initially appoints the Trustee to act as the Note Registrar and Paying Agent  and to act as Custodian with respect to the Global Notes.    12      DM_US 172750087-7.111690.0021 





 






           The Issuer will 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 or the Trustee all money held by the   Paying Agent for the payment of principal, premium or Additional Interest, if any, or interest on   the Notes, 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 Trustee, the Paying Agent (if other than the Issuer or   its Subsidiary) will have no further liability for the money.  If the Issuer or a Subsidiary of the   Issuer acts as Paying Agent, it will segregate and hold in a separate trust fund for the benefit of  the Holders all money held by it as Paying Agent.  Upon any bankruptcy or reorganization  proceedings relating to the Issuer, the Trustee will serve as Paying Agent for the Notes.        Section 2.06. Exchange and Registration of Transfer of Notes; Restrictions on Transfer.        (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 has ceased to be a clearing        agency registered under the Exchange Act and, in either case, a successor Depositary is        not appointed by the Issuer within 120 days after the date of such notice from the        Depositary;              (2)   the Issuer in its sole discretion determines that the Global Notes (in whole        but not in part) should be exchanged for Definitive Notes and delivers a written notice to        such effect to the Trustee; or              (3)   upon request from the Depositary if there has occurred and is continuing a        Default or Event of Default with respect to the Notes.        Upon the occurrence of either of the preceding events in (1) or (2) above, Definitive  Notes shall be issued in such names as the Depositary shall instruct the Trustee.  Global Notes  also may be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and 2.08   hereof.  Every Note authenticated and delivered in exchange for, or in lieu of, a Global Note or   any portion thereof, pursuant to this Section 2.06 or Sections 2.07 or 2.08 hereof, 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 2.06(a), however, beneficial   interests in a Global Note may be transferred and exchanged as provided in Sections 2.06(b) or   (f) hereof.         (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 this Indenture and the Applicable Procedures.  Transfers of  beneficial interests in the Global Notes will require compliance with either subparagraph (1) or     13      DM_US 172750087-7.111690.0021 





 






     (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 Note Registrar to effect the transfers described in this         Section 2.06(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 2.06(b)(1) above, the transferor of such beneficial interest must deliver         to the Note Registrar either:                     (A)   both:                           (i)   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                           (ii)  instructions given in accordance with the Applicable                     Procedures containing information regarding the Participant account to be                     credited with such increase; or                     (B)   both:                           (i)   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                           (ii)  instructions given by the Depositary to the Note Registrar                     containing information regarding the Person in whose name such                     Definitive Note shall be registered to effect the transfer or exchange                     referred to in (1) above.         Upon satisfaction of all of the requirements for transfer or exchange of beneficial   interests in Global Notes contained in this 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 2.06(g) hereof (other than such transfers or exchanges contemplated by   Section 2.06(b)(1) above).         (c)   Transfer or Exchange of Beneficial Interests 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 2.06(b)(2) hereof, the Trustee will cause the aggregate principal amount of the applicable    14      DM_US 172750087-7.111690.0021 





 






     Global Note to be reduced accordingly pursuant to Section 2.06(g) hereof, and the Issuer will   execute and 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 2.06(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 Note 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.           (d)   Transfer and Exchange of Definitive Notes for Beneficial Interests. 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.          (e)   Transfer and Exchange of Definitive Notes for Definitive Notes.  A Holder of   Definitive Notes may transfer such Notes to a Person who takes delivery thereof in the form of a   Definitive Note.  Prior to such registration of transfer or exchange, the requesting Holder must   present or surrender to the Note Registrar the Definitive Notes duly endorsed or accompanied by   a written instruction of transfer in form satisfactory to the Note Registrar duly executed by such   Holder or by its attorney, duly authorized in writing.  Upon receipt of a request to register such a   transfer, the Note Registrar shall register the Definitive Notes pursuant to the instructions from   the Holder thereof.         (f)   Global Note Legend.  Each Global Note will bear a legend in substantially the   following form:         “THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE   INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE   BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO   ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY   MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO   SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED   IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(A) OF THE INDENTURE,   (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR   CANCELLATION PURSUANT TO SECTION 2.09 OF THE INDENTURE AND (4) THIS   GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE   PRIOR WRITTEN CONSENT OF THE ISSUER.         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    15      DM_US 172750087-7.111690.0021 





 






     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.”        (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 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 2.09 hereof.    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 in accordance with Section 2.04 hereof or at the Note 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 2.08, 3.03 and 9.04 hereof).               (3)   The Note 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 this         Indenture, as the Global Notes or Definitive Notes surrendered upon such registration of         transfer or exchange.               (5)   Neither the Note Registrar nor the Issuer will be required:    16      DM_US 172750087-7.111690.0021 





 






                       (A)   to issue, register the transfer of or to exchange any Note during a               period beginning at the opening of business fifteen (15) days before the mailing of               a notice of redemption of the Notes selected for redemption and ending at the               close of business on the day of such mailing; or                     (B)   to register the transfer or exchange of any Note selected for               redemption in whole or in part, except the unredeemed portion of any Note being               redeemed in part.               (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 interest on such Notes and for all other purposes, and none of         the Trustee, any 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 2.04 hereof.               (8)   All certifications, certificates and Opinions of Counsel required to be         submitted to the Note Registrar pursuant to this Section 2.06 to effect a registration of         transfer or exchange may be submitted by facsimile or other electronic imaging means.               (9)   The Trustee shall have no responsibility or obligation to any Participants,         indirect Participants or any other Person with respect to the accuracy of the books or        records, or the acts or omissions, 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 Participants, Indirect Participants or other Person (other than the        Depositary) of any notice (including any notice of redemption) or the payment of any        amount, under or with respect to such Notes.  All notices and communications to be        given to the Noteholders and all payments to be made to Noteholders under the Notes        shall be given or made only to or upon the order of the registered Noteholders (which        shall be the Depositary or its nominee in the case of a Global Note).  The rights of        beneficial owners in any Global Note shall be exercised only through the Depositary        subject to the customary procedures of the Depositary.  The Trustee may rely and shall be        fully protected in relying upon information furnished by the Depositary with respect to its        Participants.              The Trustee shall have no obligation or duty to monitor, determine or inquire as to        compliance with any restrictions on transfer imposed under this Indenture or under        applicable law with respect to any transfer of any interest in any Note (including any        transfers between or among Participants in any Global Note) other than to require deliver        of such certificates and other documentation or evidence as are expressly required by, and        to do so if and when expressly required by, the terms of this Indenture, and to examine        the same to determine substantial compliance as to form with the express requirements        hereof.        Section 2.07. Mutilated, Destroyed, Lost or Stolen Notes.  In case any Note shall  become mutilated or be destroyed, lost or stolen, the Issuer in its discretion may execute, and    17      DM_US 172750087-7.111690.0021 





 






     upon its written request the Trustee or an authenticating agent appointed by the Trustee shall  authenticate and make available for delivery, a new Note, bearing a number not  contemporaneously outstanding, in exchange and substitution for the mutilated Note, or in lieu of  and in substitution for the Note so destroyed, lost or stolen.  In every case, the applicant for a  substituted Note shall furnish to the Issuer, to the Trustee and, if applicable, to such  authenticating agent such security or indemnity as may be required by them to save each of them  harmless for any loss, liability, cost or expense caused by or connected with such substitution,  and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer, to the   Trustee and, if applicable, to such authenticating agent evidence to their satisfaction of the   destruction, loss or theft of such Note and of the ownership thereof.         Following receipt by the Trustee or such authenticating agent, as the case may be, of   satisfactory security or indemnity and evidence, as described in the preceding paragraph, the   Trustee or such authenticating agent may authenticate any such substituted Note and make   available for delivery such Note.  Upon the issuance of any substituted Note, the Issuer may   require the payment by the Holder of a sum sufficient to cover any tax, assessment or other   governmental charge that may be imposed in relation thereto and any other expenses connected   therewith.  In case any Note which has matured or is about to mature or has been called for   redemption, as the case may be, shall become mutilated or be destroyed, lost or stolen, the Issuer   may, instead of issuing a substitute Note, pay or authorize the payment of, as the case may be, if   the applicant for such payment shall furnish to the Issuer, to the Trustee and, if applicable, to   such authenticating agent such security or indemnity as may be required by them to save each of   them harmless for any loss, liability, cost or expense caused by or in connection with such   substitution, and, in every case of destruction, loss or theft, the applicant shall also furnish to the   Issuer, the Trustee and, if applicable, any Paying Agent evidence to their satisfaction of the   destruction, loss or theft of such Note and of the ownership thereof.         Every substitute Note issued pursuant to the provisions of this Section 2.07 by virtue of   the fact that any Note is destroyed, lost or stolen shall constitute an additional contractual   obligation of the Issuer, whether or not the destroyed, lost or stolen Note shall be found at any   time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set forth   in) this Indenture equally and proportionately with any and all other Notes duly issued   hereunder.  To the extent permitted by law, all Notes shall be held and owned upon the express   condition that the foregoing provisions are exclusive with respect to the replacement or payment   or exchange or redemption of mutilated, destroyed, lost or stolen Notes and shall preclude any   and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted   to the contrary with respect to the replacement or payment or redemption of negotiable   instruments or other securities without their surrender.         Section 2.08. Temporary Notes.  Pending the preparation of Notes in certificated form,   the Issuer may execute and the Trustee or an authenticating agent appointed by the Trustee shall,   upon the written request of the Issuer, authenticate and deliver temporary Notes (printed or   lithographed).  Temporary Notes shall be issuable in any authorized denomination, and   substantially in the form of the Notes in certificated form, but with such omissions, insertions   and variations as may be appropriate for temporary Notes, all as may be determined by the   Issuer.  Every such temporary Note shall be executed by the Issuer and authenticated by the   Trustee or such authenticating agent upon the same conditions and in substantially the same    18      DM_US 172750087-7.111690.0021 





 






     manner, and with the same effect, as the Notes in certificated form.  Without unreasonable delay,   the Issuer will execute and deliver to the Trustee or such authenticating agent Notes in   certificated form and thereupon any or all temporary Notes may be surrendered in exchange   therefor, at each office or agency maintained by the Issuer pursuant to Section 4.02 hereof and   the Trustee or such authenticating agent shall authenticate and make available for delivery in   exchange for such temporary Notes an equal aggregate principal amount of Notes in certificated   form.  Such exchange shall be made by the Issuer at its own expense and without any charge  therefor.  Until so exchanged, the temporary Notes shall in all respects be entitled to the same  benefits and subject to the same limitations under this Indenture as Notes in certificated form  authenticated and delivered hereunder.        Section 2.09. Cancellation of Notes.  All Notes surrendered for the purpose of payment,  redemption or registration of transfer shall, if surrendered to the Issuer or any Paying Agent,  which shall initially be the Trustee, or any Note Registrar, be surrendered to the Trustee and  promptly canceled by it or, if surrendered to the Trustee, shall be promptly canceled by it and no  Notes shall be issued in lieu thereof except as expressly permitted by any of the provisions of  this Indenture.  The Trustee shall dispose of such canceled Notes in accordance with its  customary procedures, with copies of such cancelled Notes and related documentation provided  to the Issuer.  If the Issuer shall acquire any of the Notes, such acquisition shall not operate as a  redemption or satisfaction of the indebtedness represented by such Notes unless and until the  same are delivered to the Trustee for cancellation.        Section 2.10. CUSIP Numbers.  The Issuer in issuing the Notes may use “CUSIP”  numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices  of redemption as a convenience to Noteholders; provided, that any such notice may state that no  representation is made as to the correctness of such numbers either as printed on the Notes or as  contained in any notice of a redemption and that reliance may be placed only on the other  identification numbers printed on the Notes, and any such redemption shall not be affected by  any defect in or omission of such numbers.  The Issuer will promptly notify the Trustee of any  change in the “CUSIP” numbers.        Section 2.11. Issuance of Additional Notes.  The Issuer will be entitled, upon delivery of  an Officers’ Certificate, Opinion of Counsel and Authentication Order, subject to its compliance  with Section 4.09 hereof, to issue Additional Notes under the Indenture that will have identical   terms to and the same CUSIP number as the Initial Notes issued on the date of this Indenture   other than with respect to the date of issuance, issue price and interest accrued prior to the issue  date of the Additional Notes; provided, that such Additional Notes must be part of the same issue  as and fungible with the Initial Notes for United States federal income tax purposes.  The Initial  Notes and any such Additional Notes will constitute a single series of debt securities, and in  circumstances in which this Indenture provides for the Holders of Notes to vote or take any  action, the Holders of Initial Notes and the Holders of any such Additional Notes will vote or  take the action as a single class.        With respect to any Additional Notes, the Issuer will set forth in a resolution of its Board  of Directors and an Officers’ Certificate, a copy of each of which will be delivered to the  Trustee, the following information:     19      DM_US 172750087-7.111690.0021 





 






           (1)   the aggregate principal amount of such Additional Notes to be authenticated and   delivered pursuant to this Indenture; and         (2)   the issue price, the issue date and the CUSIP number of such Additional Notes.                                     ARTICLE 3                              REDEMPTION OF NOTES         Section 3.01. Optional Redemption of Notes.         (a)   The Issuer shall have the right to redeem the Notes at its option and in its sole   discretion at any time or from time to time prior to the Maturity Date, in whole or in part.  Prior   to the Par Call Date, the redemption price (“Redemption Price”) will equal the greater of   (i) 100% of the principal amount of the Notes to be redeemed or (ii) as determined by the   Quotation Agent, the sum of the present values of the remaining scheduled payments of principal   and interest thereon (not including any portion of such payments of interest accrued as of the   Redemption Date) that would be due if the Notes matured on the Par Call Date, discounted to the   Redemption Date on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day   months) at the Adjusted Treasury Rate plus 25 basis points, plus, in each case, accrued and   unpaid interest thereon to the Redemption Date; provided, however, that 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, if any, on such interest payment date to  the Holder of record at the close of business on the corresponding Record Date (instead of the  Holder surrendering its Notes for redemption).  If the Notes are redeemed on or after the Par Call  Date, the Redemption Price will be equal to 100% of the principal amount of the Notes being  redeemed plus unpaid interest, if any, accrued thereon to, but excluding, the Redemption Date.        (b)   The Issuer shall not redeem the Notes pursuant to Section 3.01(a) hereof on any   date if the principal amount of the Notes has been accelerated, and such an acceleration has not   been rescinded or cured on or prior to such date (except in the case of an acceleration resulting   from a default by the Issuer in the payment of the Redemption Price with respect to the Notes to   be redeemed).         Section 3.02. Notice of Optional Redemption; Selection of Notes.  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 3.01 hereof, it shall fix a date for redemption and it or, at its written request   received by the Trustee not fewer than five (5) 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 mailed (or   sent by electronic transmission), the Trustee in the name of and at the expense of the Issuer, shall   mail (or send by electronic transmission) or cause to be mailed (or sent by electronic   transmission) a notice of such redemption not fewer than fifteen (15) calendar days nor more   than sixty (60) calendar days prior to the Redemption Date to each Holder of Notes so to be  redeemed in whole or in part at its last address as the same appears on the Note 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 (unless sent   by electronic transmission).  The notice, if mailed in the manner herein provided, shall be   conclusively presumed to have been duly given, whether or not the Holder receives such notice.     20      DM_US 172750087-7.111690.0021 





 






     In any case, failure to give such notice by mail 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.         Each such notice of redemption shall specify:  (i) the aggregate principal amount of Notes  to be redeemed, (ii) the CUSIP number or numbers, if any, 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 Notes in principal amount equal to the unredeemed portion thereof will be issued.        Whenever any Notes are to be redeemed, the Issuer will give the Trustee written notice of  the Redemption Date, together with an Officers’ Certificate as to the aggregate principal amount  of Notes to be redeemed not fewer than fifteen (15) calendar days (or such shorter period of time  as may be acceptable to the Trustee) prior to the Redemption Date.        On or prior to the Redemption Date specified in the notice of redemption given as  provided in this Section 3.02, 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 4.04   hereof) an amount of monies 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 3.02 in excess of amounts required hereunder to pay the Redemption   Price.         If less than all of the outstanding Notes are to be redeemed, the Trustee shall select the   Notes or portions thereof of the Global Note or the Notes in certificated form to be redeemed (in   principal amounts of $2,000 and integral multiples of $1,000 in excess thereof), on a pro rata   basis or such other method the Trustee deems fair and appropriate or is required by the   Depositary.  The Notes (or portions thereof) so selected for redemption shall be deemed duly   selected for redemption for all purposes hereof.         Section 3.03. Payment of Notes Called for Redemption by the Issuer.  If notice of   redemption has been given as provided in Section 3.02 hereof, the Notes or portion of Notes with   respect to which such notice has been given shall become due and payable on the Redemption  Date and at the place or places stated in such notice at the Redemption Price, and unless the  Issuer shall default in the payment of such Notes at the Redemption Price, so long as Paying  Agent holds funds sufficient to pay the Redemption Price of the Notes to be redeemed on the  Redemption Date, then (a) such Notes will cease to be outstanding on and after the Redemption  Date, (b) interest on the Notes or portion of Notes so called for redemption shall cease to accrue    21      DM_US 172750087-7.111690.0021 





 






     on and after the Redemption Date, (c) after 5:00 p.m., New York City time, on the second  Business Day immediately preceding the Redemption Date (unless the Issuer shall default in the  payment of the Redemption Price) and, except as provided in Sections 7.05 and 11.02 hereof,   such Notes will cease to be entitled to any benefit or security under this Indenture, and (d) the   Holders of the Notes shall have no right in respect of such Notes except the right to receive the   Redemption Price thereof.  On presentation and surrender of such Notes at a place of payment in   said notice specified, the said Notes or the specified portions thereof shall be paid and redeemed   by the Issuer at the Redemption Price, together with interest accrued thereon to, but excluding,   the Redemption Date.         Upon presentation of any Note redeemed in part only, the Issuer shall execute and the   Trustee shall 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.         Section 3.04. Sinking Fund.  There shall be no sinking fund provided for the Notes.                                     ARTICLE 4                       CERTAIN COVENANTS OF THE ISSUER         Section 4.01. Payment of Principal, Premium and Interest.  The Issuer covenants and   agrees that it will duly and punctually pay or cause to be paid when due the principal of   (including the Redemption Price upon redemption pursuant to Article 3 hereof), and premium, if   any, and interest on each of the Notes at the places, at the respective times and in the manner   provided herein and in the Notes; provided, that the Issuer or Paying Agent may withhold from   payments of interest and upon redemption pursuant to Article 3 hereof, maturity or otherwise,   any amounts the Issuer or Paying Agent is required to withhold by law.        Section 4.02. Maintenance of Office or Agency.  The Issuer will maintain an office or   agency, where the Notes may be surrendered for registration of transfer or exchange or for   presentation for payment or redemption and where notices and demands to or upon the Issuer in   respect of the Notes and this Indenture may be served.  As of the date of this Indenture, such   office shall be the Corporate Trust Office and, at any other time, at such other address as the   Trustee may designate from time to time by notice to the Issuer.  The Issuer will give prompt   written notice to the Trustee of the location, and any change in the location, of such office or   agency not designated or appointed by the Trustee.  If at any time the 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.         The Issuer may also from time to time designate co-registrars and one or more offices or   agencies where the Notes may be presented or surrendered for any or all such purposes and may   from time to time rescind such designations.  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.     22      DM_US 172750087-7.111690.0021 





 






         The Issuer hereby initially designates the Trustee as Paying Agent, Note Registrar and  Custodian, and the Corporate Trust Office shall be considered as one such office or agency of the  Issuer for each of the aforesaid purposes.        So long as the Trustee is the Note Registrar, the Trustee agrees to mail (or send by  electronic transmission), or cause to be mailed, the notices set forth in Section 7.10 and the third  paragraph of Section 7.11 hereof.  If co-registrars have been appointed in accordance with this  Section 4.02, the Trustee shall mail such notices only to the Issuer and the Holders of Notes it  can identify from its records.        Section 4.03. 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 7.10 hereof, a Trustee, so that there shall at all  times be a Trustee hereunder.        Section 4.04. Provisions as to Paying Agent.        (a)   If the Issuer shall appoint a Paying Agent other than the Trustee, or if the Trustee  shall appoint such a Paying Agent, the Issuer will cause such Paying Agent to execute and  deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to  the provisions of this Section 4.04:              (1)   that it will hold all sums held by it as such agent for the payment of the       principal of and premium, if any, or interest on the Notes (whether such sums have been       paid to it by the Issuer or by any other obligor on the Notes) in trust for the benefit of the       Holders of the Notes;             (2)   that it will give the Trustee notice of any failure by the Issuer (or by any       other obligor on the Notes) to make any payment of the principal of and premium, if any,       or interest on the Notes when the same shall be due and payable; and             (3)   that at any time during the continuance of an Event of Default, upon       request of the Trustee, it will forthwith pay to the Trustee all sums so held in trust.        The Issuer shall, on or before each due date of the principal of, premium, if any, or  interest on the Notes, deposit with the Paying Agent a sum (in funds which are immediately  available on the due date for such payment) sufficient to pay such principal, premium, if any, or  interest and (unless such Paying Agent is the Trustee) the Issuer will promptly notify the Trustee  of any failure to take such action; provided, that if such deposit is made on the due date, such  deposit shall be received by the Paying Agent by 11:00 a.m. New York City time, on such date.        (b)   If the Issuer shall act as its own Paying Agent, it will, on or before each due date  of the principal of, premium, if any, or interest on the Notes, set aside, segregate and hold in trust  for the benefit of the Holders of the Notes a sum sufficient to pay such principal, premium, if  any, and interest so becoming due and will promptly notify the Trustee of any failure to take  such action and of any failure by the Issuer (or any other obligor under the Notes) to make any  payment of the principal of, premium, if any, or interest on the Notes when the same shall  become due and payable.   23    DM_US 172750087-7.111690.0021 





 






           (c)   Anything in this Section 4.04 to the contrary notwithstanding, the Issuer may, at   any time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any  other reason, pay or cause to be paid to the Trustee all sums held in trust by the Issuer or any  Paying Agent hereunder as required by this Section 4.04, such sums to be held by the Trustee   upon the trusts herein contained and upon such payment by the Issuer or any Paying Agent to the   Trustee, the Issuer or such Paying Agent shall be released from all further liability with respect   to such sums.         (d)   Anything in this Section 4.04 to the contrary notwithstanding, the agreement to   hold sums in trust as provided in this Section 4.04 is subject to Sections 11.02 and 11.03 hereof.         The Trustee shall not be responsible for the actions of any other Paying Agents (including   the Issuer if acting as its own Paying Agent) and shall have no control of any funds held by such   other Paying Agents.         Section 4.05. Existence.  Subject to Article 10 hereof, each of the Issuer and the   Guarantor will do or cause to be done all things necessary to preserve and keep in full force and   effect its existence and rights (charter and statutory); provided, that neither the Issuer nor the   Guarantor shall be required to preserve any such right if the Issuer or the Guarantor, as   applicable, shall determine that the preservation thereof is no longer desirable in the conduct of   the business of the Issuer or the Guarantor, as applicable, and that the loss thereof is not   disadvantageous in any material respect to the Noteholders.         Section 4.06. Reports.         (a)   Whether or not required by the rules and regulations of the Commission, so long   as any Notes are outstanding, the Issuer will furnish to the Trustee:               (1)   all quarterly and annual reports that would be required to be filed with the                     Commission on Forms 10-Q and 10-K if the Issuer were required to file                        such reports; and                (2)   all current reports that would be required to be filed with the Commission                     on Form 8-K if the Issuer were required to file such reports,   in each case within fifteen (15) days after the Issuer files such reports with the Commission or   would be required to file such reports with the Commission pursuant to the applicable rules and   regulations of the Commission, whichever is earlier.  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.        All such reports will be prepared in all material respects in accordance with all of the   rules and regulations applicable to such reports.  Each annual report on Form 10-K will include a   report on the Issuer’s consolidated financial statements by its independent registered public   accounting firm, unless otherwise permitted by the Commission.  Notwithstanding the foregoing,   if permitted by the Commission, the Issuer may satisfy its obligation to furnish the reports    24      DM_US 172750087-7.111690.0021 





 






   described above by furnishing such reports filed by the Guarantor.  The Issuer will file a copy of  each of the reports referred to in clauses (1) and (2) above with the Commission for public  availability within the time periods specified in the rules and regulations applicable to such  reports (unless the Commission will not accept such a filing) and will make the reports available  on its website within fifteen (15) days after it files such reports with the Commission.        If the Issuer is no longer subject to the periodic reporting requirements of the Exchange  Act for any reason, the Issuer will nevertheless continue filing the reports specified in clauses (1)  and (2) above with the Commission within the time periods specified above unless the  Commission will not accept such a filing.  The Issuer will not take any action for the purpose of  causing the Commission not to accept any such filings.  If, notwithstanding the foregoing, the  Commission will not accept the Issuer’s filings for any reason, the Issuer will make the reports  referred to in clauses (1) and (2) above available on its website within fifteen (15) days after the  Issuer would be required to file such reports with the Commission.  Notwithstanding the  foregoing, if permitted by the Commission, the Issuer’s obligations to file reports under this  Section 4.06(a) may be satisfied by the filing of the reports described in clauses (1) and (2) above  by the Guarantor.        (b)   For so long as any Notes remain outstanding, if at any time it is not required to  file with the Commission the reports required by paragraphs (a) of this Section 4.06, the Issuer  will furnish to the Holders and to securities analysts and prospective investors, upon their  request, the information required to be delivered pursuant to Rule 144A(d)(4) under the  Securities Act.        Section 4.07. Stay, Extension and Usury Laws.  The Issuer covenants (to the extent that  it may lawfully do so) that it shall not at any time insist upon, plead, or in any manner  whatsoever claim or take the benefit or advantage of, any stay, extension or usury law or other  law which would prohibit or forgive the Issuer from paying all or any portion of the principal,  premium, if any, or interest on the Notes as contemplated herein, wherever enacted, now or at  any time hereafter in force, or which may affect the covenants or the performance of this  Indenture and the Issuer (to the extent it may lawfully do so) hereby expressly waives all benefit  or advantage of any such law, and covenants that it will not, by resort to any such law, 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 4.08. Compliance Certificate.  Within one hundred twenty (120) calendar days  after the end of each fiscal year of the Issuer, the Issuer and the Guarantor shall deliver to the  Trustee a certificate signed by any of the principal executive officer, principal financial officer or  principal accounting officer of the Issuer and the Guarantor, as the case may be, stating whether  or not the signer has knowledge of any Default under this Indenture, and, if so, specifying each  Default and the nature and the status thereof.        The Issuer will deliver to the Trustee, within thirty (30) calendar days of becoming aware  of (i) any default in the performance or observance of any covenant, agreement or condition  contained in this Indenture, or (ii) any Event of Default, an Officers’ Certificate specifying with  particularity such default or Event of Default and further stating what action the Issuer has taken,  is taking or proposes to take with respect thereto.   25    DM_US 172750087-7.111690.0021 





 






           Any notice required to be given under this Section 4.08 shall be delivered to a   Responsible Officer of the Trustee at its Corporate Trust Office.         Section 4.09. Limitations on Incurrence of Debt.        (a)   Limitation on Total Outstanding Debt.  The Issuer will not, and will not permit  any of its Subsidiaries to, incur any Debt, other than Intercompany Debt and guarantees of Debt  incurred by the Issuer or its Subsidiaries in compliance with this Indenture, if, immediately after   giving effect to the incurrence of such Debt and the application of the proceeds thereof, the   aggregate principal amount of all of the Issuer’s and its Subsidiaries’ outstanding Debt on a   consolidated basis determined in accordance with generally accepted accounting principles is   greater than 60% of the sum of (without duplication) (1) Total Assets as of the end of the Issuer’s   most recently completed fiscal quarter prior to the incurrence of such additional Debt and (2) the   purchase price of any real estate assets or mortgages receivable acquired, and the amount of any   securities offering proceeds received (to the extent such proceeds were not used to acquire real   estate assets or mortgages receivable or used to reduce Debt), by Issuer or any of its Subsidiaries   since the end of such calendar quarter, including those proceeds obtained in connection with the   incurrence of such additional Debt.         (b)   Limitation on Secured Debt.  The Issuer will not, and will not permit any of its   Subsidiaries to, incur any Debt, other than Intercompany Debt and guarantees of Debt incurred   by Issuer or its Subsidiaries in compliance with this Indenture, secured by any mortgage, lien,   charge, pledge, encumbrance or security interest of any kind upon any of Issuer’s or any of its   Subsidiaries’ property if, immediately after giving effect to the incurrence of such Debt and the   application of the proceeds thereof, the aggregate principal amount of all of Issuer’s and its   Subsidiaries’ outstanding Debt on a consolidated basis which is secured by any mortgage, lien,   charge, pledge, encumbrance or security interest on Issuer’s or its Subsidiaries’ property is   greater than 40% of the sum of (without duplication) (1) Total Assets as of the end of the Issuer’s   most recently completed fiscal quarter prior to the incurrence of such additional Debt and (2) the   purchase price of any real estate assets or mortgages receivable acquired, and the amount of any   securities offering proceeds received (to the extent such proceeds were not used to acquire real   estate assets or mortgages receivable or used to reduce Debt), by Issuer or any of its Subsidiaries   since the end of such calendar quarter, including those proceeds obtained in connection with the   incurrence of such additional Debt; provided, that for purposes of this limitation, the amount of   obligations under capital leases shown as a liability on Issuer’s consolidated balance sheet shall   be deducted from Debt and from Total Assets.         (c)   Ratio of Consolidated Income Available for Debt Service to the Annual Debt   Service Charge.  The Issuer will not, and will not permit any of its Subsidiaries to, incur any   Debt, other than Intercompany Debt and guarantees of Debt by Issuer or its Subsidiaries in   compliance with this Indenture, if the ratio of Consolidated Income Available for Debt Service to   the Annual Debt Service Charge for the four consecutive fiscal quarters most recently ended   prior to the date on which such additional Debt is to be incurred shall have been less than 1.5 to   1.0, on an unaudited pro forma basis after giving effect thereto and to the application of the   proceeds therefrom, and calculated on the assumption that:  (1) such Debt and any other Debt   incurred by Issuer and its Subsidiaries since the first day of such four-quarter period and the   application of the proceeds therefrom, including to refinance other Debt, had occurred at the  beginning of such period; (2) the repayment or retirement of any other Debt by Issuer and its   26      DM_US 172750087-7.111690.0021 





 






     Subsidiaries since the first day of such four-quarter period had been repaid or retired at the   beginning of such period (except that, in making such computation, the amount of Debt under   any revolving credit facility shall be computed based upon the average daily balance of such   Debt during such period); (3) in the case of Acquired Debt or Debt incurred in connection with   any acquisition since the first day of such four-quarter period, the related acquisition had   occurred as of the first day of such period, with the appropriate adjustments with respect to such   acquisition being included in such unaudited pro forma calculation; and (4) in the case of any   acquisition or disposition by Issuer or its Subsidiaries of any asset or group of assets or other   placement of any assets in service or removal of any assets from service by Issuer or any of its   Subsidiaries since the first day of such four-quarter period, whether by merger, stock purchase or   sale, or asset purchase or sale, such acquisition, disposition, placement in service or removal   from service, or any related repayment of Debt had occurred as of the first day of such period,   with the appropriate adjustments with respect to such acquisition, disposition, placement in   service or removal from service, being included in such unaudited pro forma calculation.         (d)   Maintenance of Unencumbered Total Asset Value.  The Issuer, together with its   Subsidiaries, will at all times maintain an Unencumbered Total Asset Value in an amount not   less than 150% of the aggregate outstanding principal amount of all Issuer’s and its Subsidiaries’   unsecured Debt, taken as a whole.         Section 4.10. Insurance.  The Issuer will, and will cause of each of its Subsidiaries to,   maintain insurance with financially sound and reputable insurance companies against such risks   and in such amounts as is customarily maintained by Persons engaged in similar businesses or as   may be required by applicable law.         Section 4.11. Additional Interest Notice.  In the event that the Issuer is required to pay   Additional Interest to Holders of Notes pursuant to this Indenture, the Issuer will provide written   notice (“Additional Interest Notice”) to the Trustee of its obligation to pay Additional Interest  no later than fifteen (15) calendar days prior to the proposed interest payment date for Additional   Interest, and the Additional Interest Notice shall set forth the amount of Additional Interest to be   paid by the Issuer on such interest payment date.  The Trustee shall not at any time be under any   duty or responsibility to any Holder of Notes to determine the Additional Interest, or with respect   to the nature, extent or calculation of the amount of Additional Interest when made, or with   respect to the method employed in such calculation of the Additional Interest.                                                    ARTICLE 5       NOTEHOLDERS’ LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE        Section 5.01. Noteholders’ Lists.  The Issuer covenants and agrees that it will furnish or  cause to be furnished to the Trustee, semiannually, not more than fifteen (15) calendar days after  each February 15 and August 15 of each year beginning with February 15, 2021, and at such  other times as the Trustee may reasonably request in writing, within thirty (30) calendar days  after receipt by the Issuer of any such request (or such lesser time as the Trustee may reasonably  request in order to enable it to timely provide any notice to be provided by it hereunder), a list in  such form as the Trustee may reasonably require of the names and addresses of the Holders of  Notes as of a date not more than fifteen (15) calendar days (or such other date as the Trustee may    27      DM_US 172750087-7.111690.0021 





 






     reasonably request in order to so provide any such notices) prior to the time such information is   furnished, except that no such list need be furnished by the Issuer to the Trustee so long as the  Trustee is acting as the sole Note Registrar.        Section 5.02. Preservation and Disclosure of Lists.        (a)   The Trustee shall preserve, in as current a form as is reasonably practicable, all  information as to the names and addresses of the Holders of Notes contained in the most recent  list furnished to it as provided in Section 5.01 hereof or maintained by the Trustee in its capacity   as Note Registrar or co-registrar in respect of the Notes, if so acting.  The Trustee may destroy   any list furnished to it as provided in Section 5.01 hereof upon receipt of a new list so furnished.         (b)   The rights of Noteholders to communicate with other Holders of Notes with   respect to their rights under this Indenture or under the Notes, and the corresponding rights and   duties of the Trustee, shall be as provided by the Trust Indenture Act.         (c)   Every Noteholder agrees with the Issuer and the Trustee that neither the Issuer nor   the Trustee nor any agent of either of them shall be held accountable by reason of any disclosure   of information as to names and addresses of Holders of Notes made pursuant to the Trust   Indenture Act.         Section 5.03. Reports by Trustee.         (a)   On or before May 15 of each year beginning with May 15, 2021, the Trustee shall   transmit to Holders of Notes such reports dated as of May 15 of the year in which such reports   are made concerning the Trustee and its actions under this Indenture as may be required pursuant   to the Trust Indenture Act at the times and in the manner provided pursuant thereto.  In the event   that no events have occurred under the applicable Sections of the Trust Indenture Act, the   Trustee shall be under no duty or obligation to provide such reports.         (b)   A copy of such report shall, at the time of such transmission to Holders of Notes,   be filed by the Trustee with each stock exchange and automated quotation system, if any, upon   which the Notes are listed and with the Issuer.  The Issuer will promptly notify the Trustee in   writing if the Notes are listed on any stock exchange or automated quotation system or delisted   therefrom.                                     ARTICLE 6     REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT         Section 6.01. Events of Default.  In case 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:         (a)   default for ninety (90) days in the payment of any installment of interest under the   Notes; or     28      DM_US 172750087-7.111690.0021 





 






           (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; provided, however, that a valid  extension of the Maturity Date in accordance with the terms hereof shall not constitute a default  in the payment of principal; or        (c)   the Issuer fails to comply with any of the Issuer’s other agreements contained in  the Notes or this Indenture upon receipt by the Issuer of notice of such default by the Trustee or  by Holders of not less than twenty five percent (25%) in aggregate principal amount of the Notes  then outstanding and the Issuer fails to cure (or obtain a waiver of) such default within ninety  (90) days after the Issuer receives such notice; or        (d)   failure to pay any indebtedness for monies borrowed by the Issuer, the Guarantor  or any Significant Subsidiary of the Issuer in an outstanding principal amount in excess of  $50,000,000 at final maturity or upon acceleration after the expiration of any applicable grace  period, which indebtedness is not discharged, or such default in payment or acceleration is not  cured or rescinded, within thirty (30) days after written notice to the Issuer from the Trustee (or  to the Issuer and the Trustee from Holders of at least twenty five percent (25%) in principal  amount of the outstanding Notes); provided, however, that for the purposes of this Section   6.01(d), $50,000,000 shall be replaced by $35,000,000 for so long as any of the Issuer’s 3.50%   Senior Notes Due 2026 (the “2026 Notes”) or 3.70% Senior Notes Due 2023 (the “2023 Notes”)   are outstanding; or          (e)   the Issuer, the Guarantor or any Significant Subsidiary of the Issuer pursuant to or   under or within meaning of any Bankruptcy Law:               (i)   commences a voluntary case or proceeding seeking liquidation,        reorganization or other relief with respect to the Issuer, the Guarantor or a Significant         Subsidiary of the Issuer or its debts or seeking the appointment of a trustee, receiver,         liquidator, custodian or other similar official of the Issuer, the Guarantor or a Significant         Subsidiary of the Issuer or any substantial part of the property of the Issuer, the Guarantor         or a Significant Subsidiary of the Issuer; or               (ii)  consents to any such relief or to the appointment of or taking possession         by any such official in an involuntary case or other proceeding commenced against the         Issuer, the Guarantor or a Significant Subsidiary of the Issuer; or              (iii) consents to the appointment of a custodian of it or for all or substantially        all of its property; or              (iv)  makes a general assignment for the benefit of creditors; or        (f)   an involuntary case or other proceeding shall be commenced against the Issuer,  the Guarantor or any Significant Subsidiary of the Issuer seeking liquidation, reorganization or  other relief with respect to the Issuer, the Guarantor or a Significant Subsidiary of the Issuer 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, the Guarantor or a Significant Subsidiary of the Issuer or any substantial part of the  property of the Issuer, the Guarantor or a Significant Subsidiary of the Issuer, and such    29      DM_US 172750087-7.111690.0021 





 






     involuntary case or other proceeding shall remain undismissed and unstayed for a period of thirty   (30) calendar days; or         (g)   a court of competent jurisdiction enters an order or decree under any Bankruptcy  Law that:              (i)   is for relief against the Issuer, the Guarantor or any Significant Subsidiary        of the Issuer in an involuntary case or proceeding; or              (ii)  appoints a trustee, receiver, liquidator, custodian or other similar official         of the Issuer, the Guarantor or a Significant Subsidiary of the Issuer or any substantial         part of the property of the Issuer, the Guarantor or a Significant Subsidiary of the Issuer;         or               (iii) orders the liquidation of the Issuer, the Guarantor or a Significant         Subsidiary of the Issuer;          and, in each case in this clause (g), the order or decree remains unstayed and in effect for   thirty (30) calendar days,   then, in each and every such case (other than an Event of Default specified in Section 6.01(e),   6.01(f) or 6.01(g) hereof with respect to the Issuer), unless the principal of all of the Notes shall   have already become due and payable, either the Trustee or the Holders of at least twenty five   percent (25%) in aggregate principal amount of the Notes then outstanding, by notice in writing   to the Issuer and the Guarantor (and to the Trustee if given by Noteholders), may declare the   principal amount of and premium, if any, and interest accrued and unpaid on all the Notes to be   immediately due and payable, and upon any such declaration the same shall be immediately due   and payable.         If an Event of Default specified in Section 6.01(e), 6.01(f) or 6.01(g) hereof occurs with   respect to the Issuer, the principal amount 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.         If, at any time after the principal amount of and premium, if any, and interest on the   Notes shall have been so declared due and payable, and before any judgment or decree for the   payment of the monies due shall have been obtained or entered as hereinafter provided, Holders   of a majority in aggregate principal amount of the Notes then outstanding on behalf of the   Holders of all of the Notes then outstanding, by written notice to the 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 6.07 hereof, if all Events of Default, other than   the nonpayment of the principal amount and any accrued and unpaid interest that have become   due solely because of such acceleration, have been cured or waived.  No such rescission and   annulment shall extend to or shall affect any subsequent Default or Event of Default, or shall  impair any right consequent thereon.  The Issuer shall notify in writing a Responsible Officer of   the Trustee, promptly upon becoming aware thereof, of any Event of Default, as provided in   Section 4.08 hereof.     30      DM_US 172750087-7.111690.0021 





 






           The sole remedy for any violation of any obligations the Issuer or the General Partner   may be deemed to have pursuant to section 314(a)(1) of the Trust Indenture Act or for the   Issuer’s or Guarantor’s breach of Section 4.06 hereof shall be the accrual of additional interest on   the Notes at a rate of 0.25% per annum, payable semiannually (the “Additional Interest”).  In   no event shall Additional Interest accrue at a per annum rate in excess of 0.50% per annum   pursuant to this Indenture, regardless of the number of events or circumstances giving rise to the  requirement to pay such Additional Interest.        In case the Trustee shall have proceeded to enforce any right under this Indenture 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 Holders of Notes, and the Trustee shall be  restored respectively to their several positions and rights hereunder, and all rights, remedies and   powers of the Issuer, the Holders of Notes, and the Trustee shall continue as though no such  proceeding had been taken.        Section 6.02. Payments of Notes on Default; Suit Therefor.  The Issuer covenants that in   the case of an Event of Default pursuant to Section 6.01(a) or 6.01(b) hereof, upon demand of the   Trustee, the Issuer will pay to the Trustee, for the benefit of the Holders of the Notes, (i) the  whole amount that then shall be due and payable on all such Notes for principal and premium, if   any, or interest, as the case may be, with interest upon the overdue principal and premium, if any,   and (to the extent that payment of such interest is enforceable under applicable law) upon the   overdue installments of accrued and unpaid interest at the rate borne by the Notes, plus 1%, from   the required payment date and, (ii) in addition thereto, any amounts due the Trustee under   Section 7.06 hereof.  Until such demand by the Trustee, the Issuer may pay the principal of and   premium, if any, and interest on the Notes to the registered Holders, whether or not the Notes 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 judgment or final decree against the Issuer or any other obligor on the Notes   and collect in the manner provided by law out of the property of the Issuer or any other obligor   on the Notes wherever situated the monies adjudged or decreed to be payable.        In case there shall be pending proceedings for the bankruptcy or for the reorganization of  the Issuer or any other obligor on the Notes under any Bankruptcy Law, or any other applicable  law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator,  sequestrator or similar official shall have been appointed for or taken possession of the Issuer or  such other obligor, the property of the Issuer or such other obligor, or in the case of any other  judicial proceedings relative to the Issuer or such other obligor upon the Notes, or to the creditors   or property of the Issuer or such other obligor, the Trustee, irrespective of whether the principal   of the Notes 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 pursuant to the provisions  of this Section 6.02, shall be entitled and empowered, by intervention in such proceedings or   otherwise, to file and prove a claim or claims for the whole amount of principal, premium, if any,   accrued and unpaid interest in respect of the Notes, and, in case of any judicial proceedings, to   31      DM_US 172750087-7.111690.0021 





 






     file such proofs of claim and other papers or documents as may be necessary or advisable in   order to have the claims of the Trustee and of the Noteholders allowed in such judicial   proceedings relative to the Issuer or any other obligor on the Notes, its or their creditors, or its or   their property, and to collect and receive any monies or other property payable or deliverable on   any such claims, and to distribute the same after the deduction of any amounts due the Trustee   under Section 7.06 hereof, and to take any other action with respect to such claims, including   participating as a member of any official committee of creditors, as it reasonably deems   necessary or advisable, unless prohibited by law or applicable regulations, and any receiver,   assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is   hereby authorized by each of the Noteholders 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 Noteholders,   to pay to the Trustee any amount due it for reasonable compensation, expenses, advances and   disbursements, including counsel fees and expenses incurred by it up to the date of such   distribution.  To the extent that such payment of reasonable compensation, expenses, advances   and disbursements out of the estate in any such proceedings shall be denied for any reason,   payment of the same shall be secured by a lien on, and shall be paid out of, any and all   distributions, dividends, monies, securities and other property which the Holders of the Notes   may be entitled to receive in such proceedings, whether in liquidation or under any plan of   reorganization or arrangement or otherwise.         All rights of action and of asserting claims under this Indenture, or under any of the   Notes, may be enforced by the Trustee without the possession of any of the Notes, 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 Notes.         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 Notes, and it shall not be necessary to make any   Holders of the Notes parties to any such proceedings.         Section 6.03. Application of Monies Collected by Trustee.  Any monies collected by the   Trustee pursuant to this Article 6, 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 Notes,   and stamping thereon the payment, if only partially paid, and upon surrender thereof, if fully   paid:         FIRST:  To the payment of all amounts due the Trustee under Section 7.06 hereof;         SECOND:  In case the principal of the outstanding Notes shall not have become due and   be unpaid, to the payment of accrued and unpaid interest, if any, on the Notes in default in the   order of the maturity of the installments of such interest, with interest (to the extent that such   interest has been collected by the Trustee) as provided in Section 6.02 hereof upon the overdue   installments of interest at the annual rate of 1% above then applicable interest rate, such  payments to be made ratably to the Persons entitled thereto;    32      DM_US 172750087-7.111690.0021 





 






           THIRD:  In case the principal of the outstanding Notes shall have become due, by   declaration or otherwise, and be unpaid to the payment of the whole amount then owing and   unpaid upon the Notes for principal and premium, if any, and interest, with interest on the   overdue principal and premium, if any, and (to the extent that such interest has been collected by   the Trustee) upon overdue installments of accrued and unpaid interest, as provided in   Section 6.02 hereof, and in case such monies shall be insufficient to pay in full the whole   amounts so due and unpaid upon the Notes, then to the payment of such principal and premium,   if any, and interest without preference or priority of principal and premium, if any, over interest,   or of interest over principal and premium, if any, or of any installment of interest over any other   installment of interest, or of any Note over any other Note, ratably to the aggregate of such   principal and premium, if any, and accrued and unpaid interest; and         FOURTH:  To the payment of the remainder, if any, to the Issuer or any other Person   lawfully entitled thereto.         Section 6.04. Proceedings by Noteholders.  No Holder of any Note 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, premium, if any, or  interest on the Notes, unless (a) such Holder previously shall have given to the Trustee written   notice of an Event of Default and of the continuance thereof, as hereinbefore provided, (b) the   Holders of at least twenty five percent (25%) in aggregate principal amount of the Notes 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 ninety (90) calendar days after its receipt of such   notice, request and offer of indemnity, shall have neglected or refused to institute any such   action, suit or proceeding and (d) no direction inconsistent with such written request shall have   been given to the Trustee pursuant to Section 6.07 hereof; it being understood and intended, and   being expressly covenanted by the taker and Holder of every Note with every other taker and  Holder and the Trustee, that no one or more Holders of Notes 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 Notes, 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 Notes   (except as otherwise provided herein).  For the protection and enforcement of this Section 6.04,   each and every Noteholder and the Trustee shall be entitled to such relief as can be given either   at law or in equity.         Notwithstanding any other provision of this Indenture and any provision of any Note, the   right of any Holder of any Note to receive payment of the principal of (including the Redemption   Price upon redemption pursuant to Article 3 hereof) and premium, if any, and accrued interest on   such Note, on or after the respective due dates expressed in such Note or in the event of  redemption, or to institute suit for the enforcement of any such payment on or after such  respective dates against the Issuer shall not be impaired or affected without the consent of such  Holder.    33      DM_US 172750087-7.111690.0021 





 






           Section 6.05. Proceedings by Trustee.  In case of an Event of Default, the Trustee may,   in its discretion, proceed to protect and enforce the rights vested in it by this Indenture by such   appropriate judicial proceedings as are necessary to protect and enforce any of such rights, either  by suit in equity or by action at law or by proceeding in bankruptcy or otherwise, whether for the   specific enforcement of any covenant or agreement contained in this Indenture or in aid of the   exercise of any power granted in this Indenture, or to enforce any other legal or equitable right   vested in the Trustee by this Indenture or by law.         Section 6.06. Remedies Cumulative and Continuing.  All powers and remedies given by   this Article 6 to the Trustee or to the Noteholders shall, to the extent permitted by law, 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 Notes, 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 of the Notes 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 6.04   hereof, every power and remedy given by this Article 6 or by law to the Trustee or to the   Noteholders may be exercised from time to time, and as often as shall be deemed expedient, by   the Trustee or by the Noteholders.         Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of   Noteholders.  The Holders of not less than a majority in aggregate principal amount of the Notes   at the time outstanding 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; 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 which is not inconsistent   with such direction, (c) the Trustee may decline to take any action that would benefit some   Noteholders to the detriment of other Noteholders or otherwise be unduly prejudicial to the   Noteholders not joining therein and (d) the Trustee may decline to take any action that would   involve the Trustee in personal liability.  Prior to taking any such action hereunder, the Trustee   shall be entitled to indemnification reasonably satisfactory to it in its sole discretion against all   losses and expenses caused by taking or not taking such action.         The Holders of 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 hereunder and its consequences except (i) a default in the payment of the principal of   (including the Redemption Price upon redemption pursuant to Article 3 hereof), premium, if any,   or interest on the Notes, unless such default has been cured and the Issuer or the Guarantor has   deposited with the Trustee all required payments of the principal of, premium, if any, and interest   on the Notes (provided, however, that the Holders of a majority in aggregate principal amount of   the Notes then outstanding may rescind an acceleration and its consequences, including any   related payment default that resulted from such acceleration) or (ii) a default in respect of a   covenant or provisions hereof which under Article 9 hereof cannot be modified or amended   without the consent of the Holders of all Notes then outstanding or each Note affected thereby.         Upon any such waiver, the Issuer, the Trustee and the Holders of the Notes shall be   restored to their former positions and rights hereunder; but no such waiver shall extend to any   34      DM_US 172750087-7.111690.0021 





 






     subsequent or other Default or Event of Default or impair any right consequent thereon.    Whenever any Default or Event of Default hereunder shall have been waived as permitted by this   Section 6.07, said Default or Event of Default shall for all purposes of the Notes and this   Indenture be deemed to have been cured and to be not continuing; but no such waiver shall   extend to any subsequent or other Default or Event of Default or impair any right consequent   thereon.         Section 6.08. Notice of Defaults.  The Trustee shall, within ninety (90) calendar days   after a Responsible Officer of the Trustee has knowledge of the occurrence of a Default, mail (or   send by electronic transmission) to all Noteholders, as the names and addresses of such Holders   appear upon the Note Register, notice of all Defaults known to a Responsible Officer, unless   such Defaults shall have been cured or waived before the giving of such notice; provided, that   except in the case of default in the payment of the principal of (including the Redemption Price   upon redemption pursuant to Article 3 hereof), or interest on any of the Notes, the Trustee shall   be protected in withholding such notice if and so long as a trust committee of directors and/or   Responsible Officers of the Trustee in good faith determines that the withholding of such notice   is in the interest of the Noteholders.         Section 6.09. Undertaking to Pay Costs.  All parties to this Indenture agree, and each   Holder of any Note 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 6.09 (to the extent permitted by law) shall not apply to any suit instituted by the Issuer or   the Guarantor, to any suit instituted by the Trustee, to any suit instituted by any Noteholder, or   group of Noteholders, holding in the aggregate more than ten percent (10%) in principal amount   of the Notes at the time outstanding determined in accordance with Section 8.04 hereof, or to any   suit instituted by any Noteholder for the enforcement of the payment of the principal of   (including the Redemption Price upon redemption pursuant to Article 3 hereof), or interest on   any Note on or after the due date expressed in such Note.                                     ARTICLE 7                                   THE TRUSTEE        Section 7.01. Duties and Responsibilities of Trustee.  The Trustee, prior to the  occurrence of an Event of Default and after the curing or waiver of all Events of Default which  may have occurred, undertakes to perform such duties and only such duties as are specifically set  forth in this Indenture.  In case an Event of Default has occurred (which has not been cured or  waived), 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 its own affairs.        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:    35      DM_US 172750087-7.111690.0021 





 






           (a)   prior to the occurrence of an Event of Default and after the curing or waiving of   all Events of Default which may have occurred:               (i)   the duties and obligations of the Trustee shall be determined solely by the         express provisions of this Indenture and the Trust Indenture Act, and the Trustee shall not         be liable except for the performance of such duties and obligations as are specifically set         forth in this Indenture and no implied covenants or obligations shall be read into this         Indenture and the Trust Indenture Act against the Trustee; and               (ii)  in the absence of bad faith and willful misconduct on the part of the         Trustee, the Trustee may conclusively rely as to the truth of the statements and the         correctness of the opinions expressed therein, upon any 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 provisions hereof are specifically required         to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to         determine whether or not they conform to the requirements of this Indenture;         (b)   the Trustee shall not be liable for any error of judgment made in good faith by a   Responsible Officer or Officers of the Trustee, unless the Trustee was negligent in ascertaining   the pertinent facts;         (c)   the Trustee shall not be liable with respect to any action taken or omitted to be   taken by it in good faith in accordance with the written direction of the Holders of not less than a   majority in principal amount of the Notes at the time outstanding determined as provided in   Section 8.04 hereof 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;        (d)   whether or not therein 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 8.04;         (e)   the Trustee shall not be liable in respect of any payment (as to the correctness of   amount, entitlement to receive or any other matters relating to payment) or notice effected by the   Issuer or any Paying Agent (other than the Trustee) or any records maintained by any co-  registrar (other than the Trustee) with respect to the Notes;         (f)   if any party fails to deliver a notice relating to an event the fact of which, pursuant   to this Indenture, requires notice to be sent to the Trustee, the Trustee may conclusively rely on   its failure to receive such notice as reason to act as if no such event occurred unless a   Responsible Officer of the Trustee has actual knowledge thereof or unless the Trustee has   otherwise received written notice thereof; and         (g)   the Trustee shall not be deemed to have knowledge of any Event of Default   hereunder unless a Responsible Officer of the Trustee has actual knowledge thereof or unless the   Trustee shall have been notified in writing of such Event of Default by the Issuer or a Holder of   Notes.     36      DM_US 172750087-7.111690.0021 





 






           None of the provisions contained in this Indenture shall require the Trustee to expend or   risk its own funds or otherwise incur personal financial liability in the performance of any of its   duties or in the exercise of any of its rights or powers, if there is reasonable ground for believing   that the repayment of such funds or adequate indemnity against such risk or liability is not   reasonably assured to it.         Except as explicitly specified otherwise herein, Issuer will be responsible for making all   calculations required under this Indenture and the Notes.  Issuer will make such calculations in   good faith and, absent manifest error, Issuer’s calculations will be final and binding on Holders   of the Notes.  Issuer will provide a schedule of its calculations to the Trustee, and the Trustee is   entitled to rely upon the accuracy of Issuer’s calculations without independent verification.  The   Trustee will forward Issuer’s calculations to any Holder of the Notes upon request.         Section 7.02. Reliance on Documents, Opinions, etc.  Except as otherwise provided in   Section 7.01 hereof:         (a)   the Trustee may conclusively rely and shall be protected in acting upon any   resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order,   bond, debenture, Note, coupon or other paper or document (whether in its original, facsimile or   electronic form) believed by it in good faith to be genuine and to have been signed or presented   by the proper party or parties;         (b)   any request, direction, order or demand of the Issuer mentioned herein shall be   sufficiently evidenced by an Officers’ Certificate (unless other evidence in respect thereof be   herein specifically prescribed); and any resolution of the Board of Directors may be evidenced to   the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the Issuer or   the General Partner;         (c)   the Trustee may consult with counsel of its own selection and any advice or   Opinion of Counsel shall be full and complete authorization and protection in respect of any   action taken or omitted by it hereunder in good faith and in reliance on and in accordance with   such advice or Opinion of Counsel;         (d)   the Trustee shall be under no obligation to exercise any of the rights or powers   vested in it by this Indenture at the request, order or direction of any of the Noteholders pursuant   to the provisions of this Indenture, unless such Noteholders shall have offered to the Trustee   reasonable security or indemnity reasonably satisfactory to it against the costs, expenses and  liabilities which may be incurred therein or thereby;        (e)   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 or other paper or document, but the Trustee may make  such further inquiry or investigation into such facts or matters as it may see fit, and, if the  Trustee shall determine to make such further inquiry or investigation, it shall be entitled to  examine the books, records and premises of the Issuer, personally or by agent or attorney;        (f)   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    37      DM_US 172750087-7.111690.0021 





 






     responsible for any misconduct or negligence on the part of any agent or attorney appointed by it   with due care hereunder;         (g)   the Trustee shall not be liable for any action taken, suffered or omitted to be taken   by it in good faith and reasonably believed by it to be authorized or within the discretion or rights   or powers conferred upon it by this Indenture;         (h)   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;         (i)   the Trustee may request that the Issuer deliver an Officers’ Certificate setting   forth the names of individuals and/or titles of officers authorized at such time to take specified   actions pursuant to this Indenture, which Officers’ Certificate may be signed by any person   authorized to sign an Officers’ Certificate, including any person specified as so authorized in any   such certificate previously delivered and not superseded;         (j)   any permissive right or authority granted to the Trustee shall not be construed as a   mandatory duty;         (k)   The Trustee shall not be responsible or liable for punitive, special, indirect, 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 actions; and         (l)  The Trustee shall not be responsible or liable for any failure or delay in the   performance of its obligations under this Indenture arising out of or caused, directly or indirectly,   by circumstances beyond its reasonable control, including, without limitation, acts of God;   earthquakes; fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics;   riots; interruptions; loss or malfunction of utilities, computer (hardware or software) or   communication services; accidents; labor disputes; and acts of civil or military authorities and   governmental action.         Section 7.03. No Responsibility for Recitals, etc.  The recitals contained herein and in  the Notes (except in the Trustee’s certificate of authentication) shall be taken as the statements of  the Issuer, and the Trustee assumes no responsibility for the correctness of the same.  The  Trustee makes no representations as to the validity or sufficiency of this Indenture or of the  Notes.  The Trustee shall not be accountable for the use or application by the Issuer of any Notes  or the proceeds of any Notes authenticated and delivered by the Trustee in conformity with the  provisions of this Indenture.        Section 7.04. Trustee, Paying Agents or Registrar May Own Notes.  The Trustee, any  Paying Agent or Note Registrar, in its individual or any other capacity, may become the owner or  pledgee of Notes with the same rights it would have if it were not Trustee, Paying Agent or Note  Registrar.        Section 7.05. Monies to Be Held in Trust.  Subject to the provisions of Section 11.02   hereof, all monies received by the Trustee shall, until used or applied as herein provided, be held    38      DM_US 172750087-7.111690.0021 





 






     in trust for the purposes for which they were received.  Monies held by the Trustee in trust  hereunder need not be segregated from other funds except to the extent required by law.  Except  as otherwise provided herein, the Trustee shall be under no liability for interest on any monies  received by it hereunder except as may be agreed in writing from time to time by the Issuer and  the Trustee.        Section 7.06. Compensation and Expenses of Trustee.  The Issuer covenants and agrees  to pay to the Trustee from time to time, and the Trustee shall be entitled to, such compensation  for all services rendered by it hereunder in any capacity (which shall not be limited by any  provision of law in regard to the compensation of a trustee of an express trust) as mutually  agreed to from time to time in writing between the Issuer and the Trustee, and the Issuer will pay  or reimburse the Trustee upon its request for all reasonable expenses, disbursements and  advances reasonably incurred or made by the Trustee in accordance with any of the provisions of  this Indenture (including the reasonable compensation and the reasonable expenses and  disbursements of its counsel and of all Persons not regularly in its employ) except any such  expense, disbursement or advance as may arise from its negligence, willful misconduct,  recklessness or bad faith.  The Issuer also covenants to indemnify the Trustee and any  predecessor Trustee (or any officer, director or employee of the Trustee), in any capacity under  this Indenture and any authenticating agent for, and to hold them harmless against, any and all  loss, liability, damage, claim or reasonable expense including taxes (other than taxes based on  the income of the Trustee) incurred without negligence, willful misconduct, recklessness or bad  faith on the part of the Trustee or such officers, directors, employees or authenticating agent, as  the case may be, and arising out of or in connection with the acceptance or administration of this  trust or in any other capacity hereunder, including the reasonable costs and expenses of   defending themselves against any claim (whether asserted by the Issuer, any Holder or any other   Person) of liability in the premises.  The obligations of the Issuer under this Section 7.06 to   compensate or indemnify the Trustee and to pay or reimburse the Trustee for reasonable   expenses, disbursements and advances shall be secured by a lien prior to that of the Notes upon   all property and funds held or collected by the Trustee as such, except funds held in trust for the   benefit of the Holders of particular Notes.  The obligation of the Issuer under this Section 7.06   shall survive the satisfaction and discharge of this Indenture.         When the Trustee and its agents and any authenticating agent incur expenses or render   services after an Event of Default specified in Section 6.01(e), 6.01(f) or 6.01(g) hereof with   respect to the Issuer occurs, the expenses and the compensation for the services are intended to   constitute reasonable expenses of administration under any bankruptcy, insolvency or similar   laws.         Section 7.07. Officers’ Certificate as Evidence.  Except as otherwise provided in   Section 7.01 hereof, whenever in the administration of the provisions of this Indenture the   Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking   or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein   specifically prescribed) may, in the absence of gross negligence, bad faith, recklessness or willful   misconduct on the part of the Trustee, be deemed to be conclusively proved and established by   an Officers’ Certificate delivered to the Trustee.         Section 7.08. Conflicting Interests of Trustee.  If the Trustee has or shall acquire a   conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either   39      DM_US 172750087-7.111690.0021 





 






     eliminate such interest or resign, to the extent and in the manner provided by, and subject to the   provisions of, the Trust Indenture Act and this Indenture.         Section 7.09. Eligibility of Trustee.  There shall at all times be a Trustee hereunder   which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has  a combined capital and surplus of at least $50,000,000 (or if such Person is a member of a bank  holding company system, its bank holding company shall have a combined capital and surplus of  at least $50,000,000).  If such Person publishes reports of condition at least annually, pursuant to  law or to the requirements of any supervising or examining authority, then for the purposes of  this Section 7.09 the combined capital and surplus of such Person shall be deemed to be its   combined capital and surplus as set forth in its most recent report of condition so published.  If at   any time the Trustee shall cease to be eligible in accordance with the provisions of this   Section 7.09, it shall resign immediately in the manner and with the effect hereinafter specified   in this Article.         Section 7.10. Resignation or Removal of Trustee.         (a)   The Trustee may at any time resign by giving written notice of such resignation to   the Issuer and to the Holders of Notes.  Upon receiving such notice of resignation, the Issuer   shall promptly appoint a successor trustee by written instrument, in duplicate, executed by order   of the Board of Directors, one copy of which instrument shall be delivered to the resigning   Trustee and one copy to the successor trustee.  If no successor trustee shall have been so   appointed and have accepted appointment sixty (60) calendar days after the mailing of such   notice of resignation to the Noteholders, the resigning Trustee may, upon ten (10) Business   Days’ notice to the Issuer and the Noteholders, appoint a successor identified in such notice or   may petition, at the expense of the Issuer, any court of competent jurisdiction for the   appointment of a successor trustee, or, if any Noteholder who has been a bona fide holder of a   Note or Notes for at least six months may, subject to the provisions of Section 6.09 hereof, on   behalf of itself and all others similarly situated, petition any such court for the appointment of a   successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper  and prescribe, appoint a successor trustee.        (b)   In case at any time any of the following shall occur:              (i)   the Trustee shall fail to comply with Section 7.08 hereof after written         request therefor by the Issuer or by any Noteholder who has been a bona fide holder of a         Note or Notes for at least six months; or               (ii)  the Trustee shall cease to be eligible in accordance with the provisions of         Section 7.09 hereof and shall fail to resign after written request therefor by the Issuer or         by any such Noteholder; 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, the Issuer may remove the Trustee and appoint a successor trustee by  written instrument, in duplicate, executed by order of the Board of Directors, one copy of which   40      DM_US 172750087-7.111690.0021 





 






     instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or,   subject to the provisions of Section 6.09 hereof, any Noteholder who has been a bona fide holder   of a Note or Notes for at least six months may, on behalf of itself and all others similarly   situated, petition any court of competent jurisdiction for the removal of the Trustee and the   appointment of a successor trustee; provided, that if no successor Trustee shall have been   appointed and have accepted appointment sixty (60) calendar days after either the Issuer or the  Noteholders has removed the Trustee, or the Trustee resigns, the Trustee so removed may  petition, at the expense of the Issuer, any court of competent jurisdiction for an appointment of a  successor trustee.  Such court may thereupon, after such notice, if any, as it may deem proper  and prescribe, remove the Trustee and appoint a successor trustee.        (c)   Any resignation or removal of the Trustee and appointment of a successor trustee  pursuant to any of the provisions of this Section 7.10 shall become effective upon acceptance of   appointment by the successor trustee as provided in Section 7.11 hereof.         (d)   Notwithstanding the replacement of the Trustee pursuant to this Section 7.10, the   Issuer’s obligations under Section 7.06 hereof shall continue for the benefit of the retiring   Trustee.         Section 7.11. Acceptance by Successor Trustee.  Any successor trustee appointed as   provided in Section 7.10 hereof shall execute, acknowledge and deliver to the Issuer and to its   predecessor trustee an instrument accepting such appointment hereunder, and thereupon the  resignation or removal of the predecessor trustee shall become effective and such successor  trustee, without any further act, deed or conveyance, shall become vested with all the rights,  powers, duties and obligations of its predecessor hereunder, with like effect as if originally  named as trustee herein; but, nevertheless, on the written request of the Issuer or of the successor  trustee, the trustee ceasing to act shall, upon payment of any amount then due it pursuant to the   provisions of Section 7.06 hereof, execute and deliver an instrument transferring to such   successor trustee all the rights and powers of the trustee so ceasing to act.  Upon request of any   such successor trustee, the Issuer shall execute any and all instruments in writing for more fully   and certainly vesting in and confirming to such successor trustee all such rights and powers.    Any trustee ceasing to act shall, nevertheless, retain a lien upon all property and funds held or   collected by such trustee as such, except for funds held in trust for the benefit of Holders of   particular Notes, to secure any amounts then due it pursuant to the provisions of Section 7.06   hereof.         No successor trustee shall accept appointment as provided in this Section 7.11 unless, at   the time of such acceptance, such successor trustee shall be qualified under the provisions of   Section 7.08 hereof and be eligible under the provisions of Section 7.09 hereof.         Upon acceptance of appointment by a successor trustee as provided in this Section 7.11,   the Issuer (or the former trustee, at the written direction of the Issuer) shall mail (or send by   electronic transmission) or cause to be mailed (or sent by electronic transmission) notice of the   succession of such trustee hereunder to the Holders of Notes at their addresses as they shall   appear on the Note Register.  If the Issuer fails to mail such notice within ten (10) calendar days   after acceptance of appointment by the successor trustee, the successor trustee shall cause such   notice to be mailed at the expense of the Issuer.    41      DM_US 172750087-7.111690.0021 





 






           Section 7.12. Succession by Merger.  Any corporation into which the Trustee may be  merged or exchanged or with which it may be consolidated, or any corporation resulting from  any merger, exchange or consolidation to which the Trustee shall be a party, or any corporation  succeeding to all or substantially all of the corporate trust business of the Trustee (including any   trust created by this Indenture), shall be the successor to the Trustee hereunder without the   execution or filing of any paper or any further act on the part of any of the parties hereto,  provided, that in the case of any corporation succeeding to all or substantially all of the corporate   trust business of the Trustee, such corporation shall be qualified under the provisions of   Section 7.08 hereof and eligible under the provisions of Section 7.09 hereof.         In case at the time such successor to the Trustee shall succeed to the trusts created by this  Indenture, any of the Notes shall have been authenticated but not delivered, any such successor  to the Trustee may adopt the certificate of authentication of any predecessor trustee or  authenticating agent appointed by such predecessor trustee, and deliver such Notes so  authenticated; and in case at that time any of the Notes shall not have been authenticated, any   successor to the Trustee or any authenticating agent appointed by such successor trustee may  authenticate such Notes in the name of the successor trustee; and in all such cases such  certificates shall have the full force that is provided in the Notes or in this Indenture; provided,  that the right to adopt the certificate of authentication of any predecessor Trustee or authenticate  Notes in the name of any predecessor Trustee shall apply only to its successor or successors by  merger, exchange or consolidation.        Section 7.13. Preferential Collection of Claims.  If and when the Trustee shall be or  become a creditor of the Issuer (or any other obligor upon the Notes), the Trustee shall be subject  to the provisions of the Trust Indenture Act regarding the collection of the claims against the  Issuer (or any such other obligor).                                     ARTICLE 8                                THE NOTEHOLDERS        Section 8.01. Action by Noteholders.  Whenever in this Indenture it is provided that the  Holders of a specified percentage in aggregate principal amount of the Notes may take any  action (including the making of any demand or request, the giving of any notice, consent or  waiver or the taking of any other action), the fact that at the time of taking any such action, the  Holders of such specified percentage have joined therein may be evidenced (a) by any instrument  or any number of instruments of similar tenor executed by Noteholders in person or by agent or  proxy appointed in writing, or (b) by the record of the Holders of Notes voting in favor thereof at  any meeting of Noteholders, or (c) by a combination of such instrument or instruments and any  such record of such a meeting of Noteholders.  Whenever the Issuer or the Trustee solicits the  taking of any action by the Holders of the Notes, the Issuer or the Trustee may fix in advance of  such solicitation a date as the Record Date for determining Holders entitled to take such action.   The Record Date, if any, shall be not more than fifteen (15) calendar days prior to the date of  commencement of solicitation of such action.        Section 8.02. Proof of Execution by Noteholders.  Subject to the provisions of  Sections 7.01 and 7.02 hereof, proof of the execution of any instrument by a Noteholder or its   agent or proxy shall be sufficient if made in accordance with such reasonable rules and   regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the    42      DM_US 172750087-7.111690.0021 





 






     Trustee.  The holding of Notes shall be proved by the registry of such Notes or by a certificate of   the Note Registrar.         Section 8.03. Absolute Owners.  The Issuer, the Trustee, any Paying Agent and any   Note Registrar may deem the Person in whose name such Note shall be registered upon the Note  Register to be, and may treat it as, the absolute owner of such Note (whether or not such Note  shall be overdue and notwithstanding any notation of ownership or other writing thereon made  by any Person other than the Issuer or any Note Registrar) for the purpose of receiving payment  of or on account of the principal of (including the Redemption Price upon redemption pursuant  to Article 3 hereof), premium, if any, and interest on such Note and for all other purposes; and   neither the Issuer nor the Trustee nor any Paying Agent nor any Note Registrar shall be affected   by any notice to the contrary.  All such payments so made to any Holder for the time being, or   upon its order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy   and discharge the liability for monies payable upon any such Note.         Section 8.04. Issuer-owned Notes Disregarded.  In determining whether the Holders of  the requisite aggregate principal amount of Notes have concurred in any direction, consent,  waiver or other action under this Indenture or whether a quorum is present at a meeting of the   Holders of the Notes, Notes which are owned by the Issuer or any other obligor on the Notes or   any Affiliate of the Issuer or any other obligor on the Notes shall be disregarded and deemed not   to be outstanding for the purpose of any such determination; provided, that for the purposes of   determining whether the Trustee shall be protected in relying on any such direction, consent,   waiver or other action, only Notes which a Responsible Officer knows are so owned shall be so   disregarded.  Notes so owned which have been pledged in good faith may be regarded as  outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the satisfaction   of the Trustee the pledgee’s right to vote such Notes and that the pledgee is not the Issuer, any   other obligor on the Notes or any Affiliate of the Issuer or any such other obligor.  In the case of   a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be   full protection to the Trustee.  Upon request of the Trustee, the Issuer shall furnish to the Trustee   promptly an Officers’ Certificate listing and identifying all Notes, if any, known by the Issuer to   be owned or held by or for the account of any of the above described Persons, and, subject to   Section 7.01 hereof, the Trustee shall be entitled to accept such Officers’ Certificate as   conclusive evidence of the facts therein set forth and of the fact that all Notes not listed therein   are outstanding for the purpose of any such determination.         Section 8.05. Revocation of Consents; Future Holders Bound.  At any time prior to (but   not after) the evidencing to the Trustee, as provided in Section 8.01 hereof, of the taking of any   action by the Holders of the percentage in aggregate principal amount of the Notes specified in   this Indenture in connection with such action, any Holder of a Note which is shown by the   evidence to be included in the Notes the Holders of which have consented to such action may, by   filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding as   provided in Section 8.02 hereof, revoke such action so far as it concerns such Note.  Except as   aforesaid, any such action taken by the Holder of any Note shall be conclusive and binding upon   such Holder and upon all future Holders and owners of such Note and of any Notes issued in   exchange or substitution therefor, irrespective of whether any notation in regard thereto is made   upon such Note or any Note issued in exchange or substitution therefor.     43      DM_US 172750087-7.111690.0021 





 






                                       ARTICLE 9                           SUPPLEMENTAL INDENTURES         Section 9.01. Supplemental Indentures Without Consent of Noteholders.  The Issuer, the   Guarantor and the Trustee may, from time to time, and at any time enter into an indenture or   indentures supplemental without the consent of the Holders of the Notes hereto for one or more   of the following purposes:         (a)   to evidence a successor to the Issuer as obligor or to the Guarantor as guarantor   under this Indenture;         (b)   to add to the covenants of the Issuer or the Guarantor for the benefit of the   Holders of the Notes or to surrender any right or power conferred upon the Issuer or the  Guarantor in this Indenture or in the Notes;        (c)   to add Events of Default for the benefit of the Holders of the Notes;        (d)   to amend or supplement any provisions of this Indenture; provided, that no   amendment or supplement shall materially adversely affect the interests of the Holders of any   Notes then outstanding;         (e)   to secure the Notes;         (f)   to provide for the acceptance of appointment of a successor Trustee or facilitate   the administration of the trusts under this Indenture by more than one Trustee;         (g)   to provide for rights of Holders of Notes if any consolidation, merger or sale of all   or substantially all of property or assets of the Issuer and the Guarantor occurs;         (h)   to cure any ambiguity, defect or inconsistency in this Indenture; provided, that   this action shall not adversely affect the interests of the Holders of the Notes in any material   respect;         (i)   to provide for the issuance of Additional Notes in accordance with the limitations   set forth in this Indenture;         (j)   to supplement any of the provisions of this Indenture to the extent necessary to   permit or facilitate defeasance and discharge of any of the Notes; provided, that the action shall   not adversely affect the interests of the Holders of the Notes in any material respect; or         (k)   to conform the text of this Indenture, the Guarantee or the Notes to any provision   of the description thereof set forth in the Prospectus to the extent that such provision in the   Prospectus was intended to be a verbatim recitation of a provision in this Indenture, the  Guarantee or the Notes.        Upon the written request of the Issuer, accompanied by a copy of the resolutions of the  General Partner authorizing the execution of any supplemental indenture, the Trustee is hereby  authorized to join with the Issuer and the Guarantor in the execution of any such supplemental  indenture, to make any further appropriate agreements and stipulations that may be therein  contained and to accept the conveyance, transfer and assignment of any property thereunder, but    44      DM_US 172750087-7.111690.0021 





 






     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 9.01 may be   executed by the Issuer, the Guarantor and the Trustee without the consent of the Holders of any   of the Notes at the time outstanding, notwithstanding any of the provisions of Section 9.02   hereof.         Section 9.02. Supplemental Indenture With Consent of Noteholders.  With the consent   (evidenced as provided in Article 8 hereof) of the Holders of not less than a majority in   aggregate principal amount of the Notes at the time outstanding, the Issuer, the Guarantor and   the Trustee may, from time to time and at any time, enter into an indenture or indentures   supplemental hereto for the purpose of adding any provisions to or changing in any manner or   eliminating any of the provisions of this 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 affected thereby:         (a)   change the Stated Maturity of the principal of or any installment of interest on the   Notes, reduce the principal amount of, or the rate or amount of interest on, or any premium   payable on redemption of, the Notes, or adversely affect any right of repayment of the Holder of   the Notes, change the place of payment, or the coin or currency, for payment of principal of or   interest on any Note or impair the right to institute suit for the enforcement of any payment on or   with respect to the Notes;         (b)   reduce the percentage in principal amount of the outstanding Notes 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 requirements   of quorum or change voting requirements set forth in this Indenture;        (c)   modify or affect in any manner adverse to the Holders the terms and conditions of   the obligations of the Issuer or the Guarantor (except as provided in Section 15.04) in respect of   the due and punctual payments of principal and interest; or        (d)    modify any of this Section 9.02 or 6.07 hereof or any of the provisions relating to   the waiver of certain past Defaults or certain covenants, 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 the Notes.         Upon the written request of the Issuer, accompanied by a copy of the resolutions of the   General Partner authorizing the execution of any supplemental indenture, and upon the filing   with the Trustee of evidence of the consent of Noteholders as aforesaid, the Trustee shall join   with the Issuer and the Guarantor 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.     45      DM_US 172750087-7.111690.0021 





 






           It shall not be necessary for the consent of the Noteholders under this Section 9.02 to   approve the particular form of any proposed supplemental indenture, but it shall be sufficient if   such consent shall approve the substance thereof.         Section 9.03. 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 9.03 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 the 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 the   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 and   the Holders of Notes 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 9.04. Notation on Notes.  Notes 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 Notes so modified as to conform, in the opinion   of the Trustee and the Issuer, 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,  authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant   to Section 16.11 hereof) and delivered in exchange for the Notes then outstanding, upon   surrender of such Notes then outstanding.         Section 9.05. 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 10             CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE         Section 10.01. Issuer May Consolidate on Certain Terms.  Nothing contained in this   Indenture or in the Notes shall prevent any consolidation or merger of the Issuer with or into any   other Person or Persons (whether or not affiliated with the Issuer), or successive consolidations   or mergers in which either the Issuer will be the continuing entity or the Issuer or its successor or   successors shall be a party or parties, or shall prevent any sale, conveyance, transfer or lease of   all or substantially all of the property of the Issuer, to any other Person (whether or not affiliated   with the Issuer); provided, however, that the following conditions are met:    46      DM_US 172750087-7.111690.0021 





 






           (a)   the Issuer shall be the continuing entity, or the successor entity (if other than the   Issuer) formed by or resulting from any consolidation or merger or which shall have received the   transfer of assets shall be domiciled in the United States and shall expressly assume payment of  the principal of and interest on all of the Notes and the due and punctual performance and  observance of all of the covenants and conditions in this Indenture;        (b)   immediately after giving effect to such transaction, no Default and no Event of   Default shall have occurred and be continuing; and         (c)   either the Issuer or the successor Person, in either case, shall have delivered to the   Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation,   merger, sale, conveyance, transfer or lease and, if a supplemental indenture is required in   connection with such transaction, such supplemental indenture comply with this Article 10 and   that all conditions precedent herein provided for relating to such transaction have been complied   with.         No such consolidation, merger, sale, conveyance, transfer or lease shall be permitted by   this Section 10.01 unless prior thereto the Issuer shall have delivered to the Trustee an Officers’   Certificate and an Opinion of Counsel, each stating that the Issuer’s obligations hereunder shall   remain in full force and effect thereafter.         Section 10.02. Issuer Successor to Be Substituted.  Upon any consolidation by the Issuer   with or merger of the Issuer into any other Person or any sale, conveyance, transfer or lease of all   or substantially all of the properties and assets of the Issuer to any Person in accordance with   Section 10.01 hereof, the successor Person formed by such consolidation or into which the Issuer   is merged or to which such sale, conveyance, transfer or lease is made shall succeed to, and be   substituted for, and may exercise every right and power of, the Issuer under this Indenture with   the same effect as if such successor Person had been named as the Issuer herein, and thereafter,   except in the case of a lease, the predecessor Person shall be released and discharged from all   obligations and covenants under this Indenture and the Notes.         In case of any such consolidation, merger, sale, conveyance, transfer or lease, such   changes in phraseology and form (but not in substance) may be made in the Notes thereafter to   be issued as may be appropriate.         Section 10.03. Guarantor May Consolidate on Certain Terms.  Nothing contained in this   Indenture or in the Notes shall prevent any consolidation or merger of the Guarantor with or into   any other Person or Persons (whether or not affiliated with the Guarantor), or successive   consolidations or mergers in which either the Guarantor will be the continuing entity or the  Guarantor or its successor or successors shall be a party or parties, or shall prevent any sale,   conveyance, transfer or lease of all or substantially all of the property of the Guarantor, to any   other Person (whether or not affiliated with the Guarantor); provided, however, that the   following conditions are met:         (a)   the Guarantor shall be the continuing entity, or the successor entity (if other than   the Guarantor) formed by or resulting from any consolidation or merger or which shall have   received the transfer of assets shall be domiciled in the United States and shall expressly assume     47      DM_US 172750087-7.111690.0021 





 






     the obligations of the Guarantor under the Guarantee and the due and punctual performance and   observance of all of the covenants and conditions in this Indenture;         (b)   immediately after giving effect to such transaction, no Default and no Event of   Default shall have occurred and be continuing; and         (c)   either the Guarantor or the successor Person, in either case, shall have delivered to   the Trustee an Officers’ Certificate of the Guarantor and an Opinion of Counsel, each stating that   such consolidation, sale, merger, conveyance, transfer or lease and such supplemental indenture   comply with this Article 10 and that all conditions precedent herein provided for relating to such   transaction have been complied with.         No such consolidation, merger, sale, conveyance, transfer or lease shall be permitted by   this Section 10.03 unless prior thereto the Guarantor shall have delivered to the Trustee an   Officers’ Certificate and an Opinion of Counsel, each stating that the Guarantor’s obligations   hereunder shall remain in full force and effect thereafter.         Section 10.04. Guarantor Successor to Be Substituted.  Upon any consolidation or   merger or any sale, conveyance, transfer or lease of all or substantially all of the properties and   assets of the Guarantor to any Person in accordance with this Section 10.04, the successor Person   formed by such consolidation or into which the Guarantor is merged or to which such sale,   conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise   every right and power of, the Guarantor under this Indenture with the same effect as if such  successor Person had been named as the Guarantor herein, and thereafter, except in the case of a  lease, the predecessor Person shall be released and discharged from all obligations and covenants  under this Indenture and the Guarantee.        In case of any such consolidation, merger, sale, conveyance, transfer or lease, such  changes in phraseology and form (but not in substance) may be made in the Notes thereafter to  be issued as may be appropriate.        Section 10.05. Assumption by Guarantor.  Without the consent of any Holders of the  Notes, the Guarantor, or a Subsidiary thereof, may directly assume, by an indenture  supplemental hereto, executed and delivered to the Trustee, in form satisfactory to the Trustee,  the due and punctual payment of the principal of, any premium and interest on all the Notes and  the performance of every covenant of this Indenture on the part of the Issuer to be performed or  observed.  Upon any such assumption, the Guarantor or such Subsidiary shall succeed to, and be  substituted for and may exercise every right and power of, the Issuer under this Indenture with  the same effect as if the Guarantor or such Subsidiary had been named as the Issuer herein and  the Issuer shall be released from all obligations and covenants with respect to the Notes.  No  such assumption shall be permitted unless the Guarantor has delivered to the Trustee (i) an  Officers’ Certificate and an Opinion of Counsel, each stating that such assumption and  supplemental indenture comply with this Article 10, and that all conditions precedent herein   provided for relating to such transaction have been complied with and that, in the event of   assumption by a Subsidiary, the Guarantee and all other covenants of the Guarantor herein  remain in full force and effect and (ii) an opinion of independent counsel that the Holders of  Notes shall have no materially adverse United States federal tax consequences as a result of such    48      DM_US 172750087-7.111690.0021 





 






     assumption, and that, if any Notes are then listed on the New York Stock Exchange, that such   Notes shall not be delisted as a result of such assumption.                                    ARTICLE 11                   SATISFACTION AND DISCHARGE OF INDENTURE        Section 11.01. Discharge of Indenture.  This Indenture shall cease to be of further effect  (except as to any surviving rights of registration of transfer or exchange of Notes herein  expressly provided for and except as further provided below), and the Trustee, on demand of and  at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and  discharge of this Indenture, when (a) either:  (1) all Notes theretofore authenticated and delivered  (other than (i) Notes which have been destroyed, lost or stolen and which have been replaced or  paid as provided in Section 11.04 hereof and (ii) Notes for whose payment monies have   theretofore been deposited in trust and thereafter repaid to the Issuer as provided in Section 11.04   hereof) have been delivered to the Trustee for cancellation; or (2) all such Notes not theretofore   delivered to the Trustee for cancellation (i) have become due and payable, whether at the   Maturity Date, or otherwise, or (ii) are to be called for redemption under arrangements   satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and   at the expense, of the Issuer, and the Issuer, in the case of clause (1) or (2) above, has irrevocably  deposited or caused to be irrevocably deposited with the Trustee or a Paying Agent (other than  the Issuer or any of its Affiliates), as applicable, as trust funds in trust cash in an amount  sufficient to pay and discharge the entire indebtedness on such Notes not theretofore delivered to  the Trustee for cancellation, for principal and interest to the date of such deposit (in the case of  Notes which have become due and payable) or to the Maturity Date or Redemption Date, as the  case may be; provided, however, that there shall not exist, on the date of such deposit, a Default   or Event of Default; provided, further, that such deposit 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 is a party or to which the Issuer is bound; (b) the Issuer has paid or caused to be paid   all other sums payable hereunder by the Issuer; and (c) the Issuer has delivered to the Trustee an   Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein   provided for relating to the satisfaction and discharge of this Indenture have been complied with.         Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the   Issuer to the Trustee under Section 7.06 hereof shall survive and, if monies shall have been   deposited with the Trustee pursuant to subclause (2) of clause (a) of this Section 11.01, the   provisions of Sections 2.06, 2.07, 2.08, and 5.01 hereof and this Article 11, shall survive until the   Notes have been paid in full.         Section 11.02. Deposited Monies to Be Held in Trust by Trustee.  Subject to   Section 11.04 hereof, all monies deposited with the Trustee pursuant to Section 7.05 hereof shall   be held in trust for the sole benefit of the Noteholders, and such monies shall be applied by the  Trustee to the payment, either directly or through any Paying Agent (including the Issuer if   acting as its own Paying Agent), to the Holders of the particular Notes for the payment or   redemption of which such monies have been deposited with the Trustee, of all sums due and to   become due thereon for principal, premium, if any, and interest.  The Trustee is not responsible   to anyone for interest on any deposited funds except as agreed in writing.     49      DM_US 172750087-7.111690.0021 





 






           Section 11.03. Paying Agent to Repay Monies Held.  Subject to the provisions of   Section 11.04 hereof, the Trustee or a Paying Agent shall hold in trust, for the benefit of the   Noteholders, all monies deposited with it pursuant to Section 11.01 hereof and shall apply the   deposited monies in accordance with this Indenture and the Notes to the payment of the principal   of (including the Redemption Price upon redemption pursuant to Article 3 hereof) and interest on   the Notes.         Section 11.04. Return of Unclaimed Monies.  The Trustee and each Paying Agent shall  pay to the Issuer upon request any monies held by them for the payment of principal or interest   that remains unclaimed for two years after a right to such monies have 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, either publish in a newspaper of general circulation   in The City of New York, or cause to be mailed (or sent by electronic transmission) to each   Holder entitled to such monies, notice that such monies remain unclaimed and that after a date   specified therein, which shall be at least thirty (30) calendar days from the date of such mailing   or publication, any unclaimed balance of such monies then remaining will be repaid to the Issuer.    After payment to the Issuer, Holders entitled to monies must look to the Issuer 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 monies.         Section 11.05. Reinstatement.  If the Trustee or the Paying Agent is unable to apply any   monies in accordance with Section 11.02 hereof by reason of any order or judgment of any court   or governmental authority enjoining, restraining or otherwise prohibiting such application, the  Issuer’s obligations under this Indenture and the Notes shall be revived and reinstated as though  no deposit had occurred pursuant to Section 11.01 hereof until such time as the Trustee or the   Paying Agent is permitted to apply all such monies in accordance with Section 11.02 hereof;   provided, that if the Issuer makes any payment of principal of or interest on any Note following   the reinstatement of its obligations, the Issuer shall be subrogated to the rights of the Holders of   such Notes to receive such payment from the monies held by the Trustee or Paying Agent.                                    ARTICLE 12                 LEGAL DEFEASANCE AND COVENANT DEFEASANCE        Section 12.01. Option to Effect Legal Defeasance or Covenant Defeasance.  The Issuer  may, at its option and at any time, elect to have either Section 12.02 or 12.03 hereof be applied to   all outstanding Notes upon compliance with the conditions set forth below in this Article 12.         Section 12.02. Legal Defeasance and Discharge.  Upon the Issuer’s exercise under   Section 12.01 hereof of the option applicable to this Section 12.02, the Issuer and the Guarantor   will, subject to the satisfaction of the conditions set forth in Section 12.04 hereof, be deemed to   have been discharged from their obligations with respect to all outstanding Notes and Guarantee   on the date the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”).  For  this purpose, Legal Defeasance means that the Issuer and the Guarantor will be deemed to have  paid and discharged the entire Debt represented by the outstanding Notes and Guarantee, which  will thereafter be deemed to be “outstanding” only for the purposes of Section 12.05 hereof and   the other sections of this Indenture referred to in clauses (a) and (b) below, and to have satisfied   all their other obligations under such Notes, the Guarantee and this Indenture (and the Trustee,   on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging    50      DM_US 172750087-7.111690.0021 





 






   the same), except for the following provisions which will survive until otherwise terminated or  discharged hereunder:        (a)   the rights of Holders of outstanding Notes to receive payments in respect of the  principal of, or interest or premium and Additional Interest, if any, on, such Notes when such  payments are due from the trust referred to in Section 12.04 hereof;        (b)   the Issuer’s obligations with respect to such Notes under Article 2 and  Section 4.02 hereof;        (c)   the rights, powers, trusts, duties and immunities of the Trustee hereunder and the  Issuer’s and the Guarantor’s obligations in connection therewith; and        (d)   this Article 12.        Subject to compliance with this Article 12, the Issuer may exercise its option under this  Section 12.02 notwithstanding the prior exercise of its option under Section 12.03 hereof.        Section 12.03. Covenant Defeasance.        Upon the Issuer’s exercise under Section 12.01 hereof of the option applicable to this  Section 12.03, the Issuer and the Guarantor will, subject to the satisfaction of the conditions set  forth in Section 12.04 hereof, be released from each of their obligations under the covenants  contained in Sections 4.09, 4.10 and 4.11 hereof with respect to the outstanding Notes on and  after the date the conditions set forth in Section 12.04 hereof are satisfied (hereinafter,  “Covenant Defeasance”), and the Notes will thereafter be deemed not “outstanding” for the  purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences  of any thereof) in connection with such covenants, but will continue to be deemed “outstanding”  for all other purposes hereunder (it being understood that such Notes will not be deemed  outstanding for accounting purposes).  For this purpose, Covenant Defeasance means that, with  respect to the outstanding Notes and Guarantee, the Issuer and the Guarantor may omit to  comply with and will have no liability in respect of any term, condition or limitation set forth in  any such covenant, whether directly or indirectly, by reason of any reference elsewhere herein to  any such covenant or by reason of any reference in any such covenant to any other provision  herein or in any other document and such omission to comply will not constitute a Default or an  Event of Default under Section 6.01 hereof, but, except as specified above, the remainder of this  Indenture and such Notes and Guarantee will be unaffected thereby.  In addition, upon the  Issuer’s exercise under Section 12.01 hereof of the option applicable to this Section 12.03,  subject to the satisfaction of the conditions set forth in Section 12.04 hereof, Sections 6.01(c) and  6.01(d) hereof will not constitute Events of Default.        Section 12.04. Conditions to Legal or Covenant Defeasance.        In order to exercise either Legal Defeasance or Covenant Defeasance under either  Section 12.02 or 12.03 hereof:        (a)   the Issuer must irrevocably deposit with the Trustee, in trust, for the benefit of the  Holders, cash in U.S. dollars, non-callable Government Securities, or a combination thereof, in  such amounts as will be sufficient, in the opinion of a nationally recognized investment bank,   51    DM_US 172750087-7.111690.0021 





 






     appraisal firm, or firm of independent public accountants, to pay the principal of, premium and  Additional Interest, if any, and interest on, the outstanding Notes on the stated date for payment  thereof or on the applicable Redemption Date, as the case may be, and the Issuer must specify  whether the Notes are being defeased to such stated date for payment or to a particular  Redemption Date;        (b)   in the case of an election under Section 12.02 hereof, the Issuer must deliver to   the Trustee an Opinion of Counsel confirming that:               (1)   the Issuer has received from, or there has been published by, the Internal         Revenue Service a ruling; or               (2)   since the date of this Indenture, there has been a change in the applicable         federal income tax law,    in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that,   the Holders of the outstanding Notes will not recognize income, gain or loss for federal income   tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on   the same amounts, in the same manner and at the same times as would have been the case if such   Legal Defeasance had not occurred;         (c)   in the case of an election under Section 12.03 hereof, the Issuer must deliver to   the Trustee an Opinion of Counsel confirming that the Holders of the outstanding Notes will not   recognize income, gain or loss for federal income tax purposes as a result of such Covenant   Defeasance and will be subject to federal income tax on the same amounts, in the same manner   and at the same times as would have been the case if such Covenant Defeasance had not   occurred;         (d)   no Default or Event of Default shall have occurred and be continuing on the date   of such deposit (other than a Default or Event of Default resulting from the borrowing of funds   to be applied to such deposit (and any similar concurrent deposit relating to other indebtedness   being defeased, discharged or replaced), and the granting of liens to secure such borrowings);         (e)   such Legal Defeasance or Covenant Defeasance will not result in a breach or   violation of, or constitute a default under, any material agreement or instrument (other than this   Indenture and the agreements governing any other indebtedness being defeased, discharged or   replaced) to which the Issuer or the Guarantor is a party or by which the Issuer or the Guarantor   is bound;         (f)   the Issuer must deliver to the Trustee an Officers’ Certificate stating that the   deposit was not made by the Issuer with the intent of preferring the Holders of Notes over the   other creditors of the Issuer with the intent of defeating, hindering, delaying or defrauding any   creditors of the Issuer or others; and         (g)   the Issuer must deliver to the Trustee an Officers’ Certificate and an Opinion of   Counsel, each stating that all conditions precedent relating to the Legal Defeasance or the  Covenant Defeasance have been complied with.     52      DM_US 172750087-7.111690.0021 





 






           Section 12.05. Deposited Money and Government Securities to be Held in Trust; Other   Miscellaneous Provisions.         Subject to Section 12.06 hereof, all money and non-callable Government Securities   (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee,   collectively for purposes of this Section 12.05, the “Trustee”) pursuant to Section 12.04 hereof   in respect of the outstanding Notes will be held in trust and applied by the Trustee, in accordance   with the provisions of such Notes and this Indenture, to the payment, either directly or through   any Paying Agent (including the Issuer acting as Paying Agent) as the Trustee may determine, to   the Holders of such Notes of all sums due and to become due thereon in respect of principal,   premium and Additional Interest, if any, and interest, but such money need not be segregated   from other funds except to the extent required by law.        The Issuer will pay and indemnify the Trustee against any tax, fee or other charge  imposed on or assessed against the cash or non-callable Government Securities deposited   pursuant to Section 12.04 hereof or the principal and interest received in respect thereof other   than any such tax, fee or other charge which by law is for the account of the Holders of the   outstanding Notes.         Notwithstanding anything in this Article 12 to the contrary, the Trustee will deliver or   pay to the Issuer from time to time upon the request of the Issuer any money or non-callable   Government Securities held by it as provided in Section 12.04 hereof which, in the opinion of a   nationally recognized firm of independent public accountants expressed in a written certification   thereof delivered to the Trustee (which may be the opinion delivered under Section 12.04(a)   hereof), are in excess of the amount thereof that would then be required to be deposited to effect   an equivalent Legal Defeasance or Covenant Defeasance.         Section 12.06. Repayment to Issuer.        Any money deposited with the Trustee or any Paying Agent, or then held by the Issuer, in   trust for the payment of the principal of, premium or Additional Interest, if any, or interest on,   any Note and remaining unclaimed for two years after such principal, premium or Additional   Interest, if any, or interest has become due and payable shall be paid to the Issuer on its request   or (if then held by the Issuer) will be discharged from such trust; and the Holder of such Note   will thereafter be permitted to look only to the Issuer for payment thereof, and all liability of the   Trustee or such Paying Agent with respect to such trust money, and all liability of the Issuer as   trustee thereof, will 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   published once, in the New York Times and The Wall Street Journal (national edition), notice   that such money remains unclaimed and that, after a date specified therein, which will not be less   than 30 days from the date of such notification or publication, any unclaimed balance of such   money then remaining will be repaid to the Issuer.         Section 12.07. Reinstatement.         If the Trustee or Paying Agent is unable to apply any U.S. dollars or non-callable   Government Securities in accordance with Section 12.02 or 12.03 hereof, as the case may be, by   reason of any order or judgment of any court or governmental authority enjoining, restraining or    53      DM_US 172750087-7.111690.0021 





 






   otherwise prohibiting such application, then the Issuer’s and the Guarantor’s obligations under  this Indenture and the Notes and the Guarantee will be revived and reinstated as though no  deposit had occurred pursuant to Section 12.02 or 12.03 hereof until such time as the Trustee or  Paying Agent is permitted to apply all such money in accordance with Section 12.02 or 12.03  hereof, as the case may be; provided, however, that, if the Issuer makes any payment of principal  of, premium or Additional Interest, if any, or interest on, any Note following the reinstatement of  its obligations, the Issuer will be subrogated to the rights of the Holders of such Notes to receive  such payment from the money held by the Trustee or Paying Agent.                                   ARTICLE 13   IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS        Section 13.01. Indenture and Notes Solely Corporate Obligations.  Except as otherwise  expressly provided in Article 15 hereof, no recourse for the payment of the principal of  (including the Redemption Price upon redemption pursuant to Article 3 hereof) 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 Indenture  or in any supplemental indenture or in any Note, or because of the creation of any indebtedness  represented thereby, shall be had against any incorporator, stockholder, limited partner, member,  manager, employee, agent, officer, director or Subsidiary, as such, past, present or future, of the  General Partner, the Issuer or any of the Issuer’s Subsidiaries or of any successor thereto, either  directly or through 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  Indenture and the issue of the Notes.                                   ARTICLE 14                        MEETINGS OF HOLDERS OF NOTES        Section 14.01. Purposes for Which Meetings May Be Called.  A meeting of Holders of  Notes 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 act  provided by this Indenture to be made, given or taken by Holders of Notes.        Section 14.02. Call, Notice and Place of Meetings.        (a)   The Trustee may at any time call a meeting of Holders of Notes for any purpose  specified in Section 14.01 hereof, to be held at such time and at such place in The City of New  York, New York as the Trustee shall determine.  Notice of every meeting of Holders of Notes,  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 16.03 hereof, not less  than twenty-one (21) nor more than 180 days prior to the date fixed for the meeting.        (b)   In case at any time the Issuer, the Guarantor or the Holders of at least 10% in  principal amount of the outstanding Notes shall have requested the Trustee to call a meeting of  the Holders of Notes for any purpose specified in Section 14.01 hereof, by written request setting  forth in reasonable detail the action proposed to be taken at the meeting, and the Trustee shall not   54    DM_US 172750087-7.111690.0021 





 






     have mailed notice of or made the first publication of the notice of such meeting within twenty-  one (21) days after receipt of such request or shall not thereafter proceed to cause the meeting to  be held as provided herein, then the Issuer, the Guarantor, if applicable, or the Holders of Notes   in the amount above specified, as the case may be, may determine the time and the place in the   City of New York, New York, for such meeting and may call such meeting for such purposes by   giving notice thereof as provided in clause (a) of this Section 14.02.         Section 14.03. Persons Entitled to Vote at Meetings.  To be entitled to vote at any   meeting of Holders of Notes, a Person shall be (a) a Holder of one or more outstanding Notes, or   (b) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or   more outstanding Notes by such Holder or Holders.  The only Persons who shall be entitled to be   present or to speak at any meeting of Holders of Notes shall be the Persons entitled to vote at   such meeting and their counsel, any representatives of the Trustee and its counsel, any   representatives of the Guarantor and its counsel and any representatives of the Issuer and its   counsel.         Section 14.04. Quorum; Action.  The Persons entitled to vote a majority in principal   amount of the outstanding Notes shall constitute a quorum for a meeting of Holders of Notes;   provided, however, that if any action is to be taken at the meeting with respect to any request,   demand, authorization, direction, notice, consent, waiver or other action which may be made,   given or taken by the Holders of not less than a specified percentage in principal amount of the   outstanding Notes, the Persons holding or representing the specified percentage in principal   amount of the outstanding Notes will constitute a quorum.  In the absence of a quorum within 30   minutes after the time appointed for any such meeting, the meeting shall, if convened at the   request of Holders of Notes, be dissolved.  In any other case the meeting may be adjourned for a   period of not less than ten (10) days as determined by the chairman of the meeting prior to the   adjournment of such meeting.  In the absence of a quorum at any such adjourned meeting, such   adjourned meeting may be further adjourned for a period of not less than ten (10) days as   determined by the chairman of the meeting prior to the adjournment of such adjourned meeting.    Notice of the reconvening of any adjourned meeting shall be given as provided in Section 14.02   hereof, except that such notice need be given only once not less than five days prior to the date   on which the meeting is scheduled to be reconvened.  Notice of the reconvening of an adjourned   meeting shall state expressly the percentage, as provided above, of the principal amount of the  outstanding Notes which shall constitute a quorum.        Except as limited by the proviso to Section 9.02 hereof, any resolution presented to a   meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be   adopted only by the affirmative vote of the Holders of a majority in principal amount of the   outstanding Notes; provided, however, that, except as limited by the proviso to Section 9.02   hereof, 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 Notes may be adopted at a meeting or an adjourned meeting duly reconvened  and at which a quorum is present as aforesaid by the affirmative vote of the Holders of such  specified percentage in principal amount of the outstanding Notes.     55      DM_US 172750087-7.111690.0021 





 






           Any resolution passed or decision taken at any meeting of Holders of Notes duly held in   accordance with this Section 14.04 shall be binding on all the Holders of Notes, whether or not   such Holders were present or represented at the meeting.         Section 14.05. Determination of Voting Rights; Conduct and Adjournment of Meetings.    Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable   regulations as it may deem advisable for any meeting of Holders of Notes in regard to proof of  the holding of Notes and of the appointment of proxies and in regard to the appointment and  duties of inspectors of votes, the submission and examination of proxies, certificates and other  evidence of the right to vote, and such other matters concerning the conduct of the meeting as it  shall deem appropriate.  Except as otherwise permitted or required by any such regulations, the  holding of Notes shall be proved in the manner specified in Section 8.03 hereof and the   appointment of any proxy shall be proved in the manner specified in Section 8.01 hereof.         (a)   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 Notes as  provided in Section 14.02(b) hereof, in which case the Issuer, the Guarantor or the Holders of   Notes calling the meeting, as the case may be, shall in like manner appoint a temporary   chairman.  A permanent chairman and a permanent secretary of the meeting shall be elected by  vote of the Persons entitled to vote a majority in principal amount of the outstanding Notes of  such series represented at the meeting.        (b)   At any meeting, each Holder of a Note or proxy shall be entitled to one vote for  each $2,000 principal amount of Notes held or represented by him; provided, however, that no  vote shall be cast or counted at any meeting in respect of any Note challenged as not outstanding  and ruled by the chairman of the meeting to be not outstanding.  The chairman of the meeting  shall have no right to vote, except as a Holder of a Note or proxy.        (c)   Any meeting of Holders of Notes duly called pursuant to Section 14.02 hereof at   which a quorum is present may be adjourned from time to time by Persons entitled to vote a   majority in principal amount of the outstanding Notes represented at the meeting; and the   meeting may be held as so adjourned without further notice.         Section 14.06. Counting Votes and Recording Action of Meetings.  The vote upon any   resolution submitted to any meeting of Holders of Notes shall be by written ballots on which   shall be subscribed the signatures of the Holders of Notes or of their representatives by proxy   and the principal amounts and serial numbers of the outstanding Notes held or represented by   them.  The permanent chairman of the meeting shall appoint two inspectors of votes who shall   count all votes cast at the meeting for or against any resolution and who shall make and file with   the secretary of the meeting their verified written reports in triplicate of all votes cast at the   meeting.  A record, at least in triplicate, of the proceedings of each meeting of Holders of Notes   shall be prepared by the secretary of the meeting and there shall be attached to said record the   original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits by   one or more persons having knowledge of the facts setting forth a copy of the notice of the   meeting and showing that said notice was given as provided in Section 14.02 hereof and, if   applicable, Section 14.04 hereof.  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 the Guarantor, and another to the Trustee to be preserved by the Trustee, the latter to    56      DM_US 172750087-7.111690.0021 





 






     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 15                                     Guarantee         Section 15.01. Guarantee.  By its execution hereof, the Guarantor acknowledges and   agrees that it receives substantial benefits from the Issuer and that the Guarantor is providing its   Guarantee for good and valuable consideration, including, without limitation, such substantial   benefits.  Accordingly, subject to the provisions of this Article 15, the Guarantor hereby   unconditionally guarantees to each Holder of a Note authenticated and delivered by the Trustee   and its successors and assigns that:  (i) the principal of (including the Redemption Price upon   redemption pursuant to Article 3 hereof), premium, if any, and interest and Additional Interest, if   any, on the Notes shall be duly and punctually paid in full when due, whether at the Maturity   Date, upon acceleration, upon redemption or otherwise, and interest on overdue principal,   premium, if any, Additional Interest, if any, and (to the extent permitted by law) interest on any   interest, if any, on the Notes and all other obligations of the Issuer to the Holders or the Trustee   hereunder or under the Notes (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 Notes 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 or otherwise, subject,   however, in the case of clauses (i) and (ii) above, to the limitations set forth in Section 15.03   hereof (collectively, the “Guarantee Obligations”).         Subject to the provisions of this Article 15, the Guarantor hereby agrees that its   Guarantee hereunder shall be unconditional, irrespective of the validity, regularity or   enforceability of the Notes or this Indenture, the absence of any action to enforce the same, any  waiver or consent by any Holder of the Notes with respect to any 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 the Guarantor.  The  Guarantor hereby waives and relinquishes:  (a) any right to require the Trustee, the Holders or   the Issuer (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 secured party’s power before proceeding against the 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 and notice of any kind (except as expressly required by this Indenture),   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 the Guarantor, the Issuer,   any Benefited Party, any creditor of the 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 the 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;    57      DM_US 172750087-7.111690.0021 





 






     (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.  The Guarantor 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, premium, if any, and interest on the Notes and all other costs provided   for under this Indenture or as provided in Article 7 hereof.         If any Holder or the Trustee is required by any court or otherwise to return to either the   Issuer or the Guarantor, or any trustee or similar official acting in relation to either the Issuer or   the Guarantor, any amount paid by the Issuer or the Guarantor to the Trustee or such Holder, the   Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.  The   Guarantor agrees that it shall not be entitled to any right of subrogation in relation to the Holders   in respect of any Guarantee Obligations hereby until payment in full of all such obligations   guaranteed hereby.  The Guarantor agrees that, as between it, on the one hand, and the Holders   of Notes and the Trustee, on the other hand, (x) the maturity of the obligations guaranteed hereby   may be accelerated as provided in Article 6 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 obligations as provided in Article 6   hereof, such Guarantee Obligations (whether or not due and payable) shall forthwith become due   and payable by the Guarantor for the purpose of the Guarantee.         Section 15.02. Execution and Delivery of Guarantee.  To evidence the Guarantee set   forth in Section 15.01 hereof, the Guarantor agrees that a notation of the Guarantee substantially   in the form included in Exhibit B hereto shall be endorsed on each Note authenticated and   delivered by the Trustee and that this Indenture shall be executed on behalf of the Guarantor by   an Officer of the Guarantor.         The Guarantor agrees that the Guarantee set forth in this Article 15 shall remain in full   force and effect and apply to all the Notes notwithstanding any failure to endorse on each Note a   notation of the Guarantee.         If an officer whose signature is on a Note or a notation of Guarantee no longer holds that   office at the time the Trustee authenticates the Note on which the Guarantee is endorsed, the  Guarantee shall be valid nevertheless.        The delivery of any Note by the Trustee, after the authentication thereof hereunder, shall  constitute due delivery of the Guarantee set forth in this Indenture on behalf of the Guarantor.        Section 15.03. Limitation of Guarantor’s Liability; Certain Bankruptcy Events.        (a)   The Guarantor, and by its acceptance hereof each Holder, hereby confirms that it  is the intention of all such parties that the Guarantee Obligations of the 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.  To effectuate the foregoing intention, the Holders and the Guarantor   hereby irrevocably agree that the Guarantee Obligations of the Guarantor under this Article 15   shall be limited to the maximum amount as shall, after giving effect to all other contingent and    58      DM_US 172750087-7.111690.0021 





 






   fixed liabilities of the Guarantor, result in the Guarantee Obligations of the Guarantor under the  Guarantee not constituting a fraudulent transfer or conveyance.        (b)   The 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, the 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 15.04. Release of Guarantor of Guarantee Obligations.        (a)   Notwithstanding any other provisions of this Indenture, the Guarantee Obligations  of the Guarantor may be released upon the terms and subject to the conditions set forth in this  Section 15.04. Provided that no Default shall have occurred and shall be continuing under this  Indenture, the Guarantee Obligations incurred by the Guarantor pursuant to this Article 15 shall  be unconditionally released and discharged automatically upon the release of all guarantees by  the Guarantor of the 2026 Notes, the 2023 Notes, the Issuer’s 3.750% Senior Notes due 2027, the  Issuer’s 3.100% Senior Notes due 2030, the Issuer’s $1,300.0 million unsecured revolving credit  and term loan facility, the Issuer’s $200 million unsecured term loan and any additional  guarantees by the Guarantor of senior unsecured indebtedness.        (b)   The Trustee shall deliver an appropriate instrument evidencing the release of the  Guarantor from the Guarantee Obligations upon receipt of a written request of the Issuer  accompanied by an Officers’ Certificate and an Opinion of Counsel that the Guarantor is entitled  to such release in accordance with the provisions of this Indenture.                                   ARTICLE 16                              Miscellaneous Provisions        Section 16.01. Provisions Binding on Issuer’s and Guarantor’s Successors.  All the  covenants, stipulations, promises and agreements by the Issuer or Guarantor contained in this  Indenture shall bind their respective successors and assigns whether so expressed or not.        Section 16.02. Official Acts by Successor Corporation.  Any act or proceeding by any  provision of this Indenture authorized or required to be done or performed by any board,  committee or officer of the Issuer or Guarantor shall and may be done and performed with like  force and effect by the like board, committee or officer of any Person that shall at the time be the  lawful sole successor of the Issuer or Guarantor.        Section 16.03. Addresses for Notices, etc.  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 Notes on the Issuer or Guarantor shall be in writing and shall be deemed to have been  sufficiently given or made, for all purposes, if given or served by being deposited postage  prepaid by registered or certified mail in a post office letter box, or sent by overnight courier, or  sent by telecopier transmission addressed as follows:    59    DM_US 172750087-7.111690.0021 





 






           To the Issuer:         Healthcare Trust of America Holdings, LP         16435 North Scottsdale Road, Suite 320         Scottsdale, Arizona 85254         Telecopier No.:  (480) 991-0755         Attention:  Mr. Scott D. Peters, Chief Executive Officer         cc:      Mr. Robert A. Milligan, Chief Financial Officer         With a copy to:          McDermott Will & Emery LLP         275 Middlefield Road Suite 100         Menlo Park, CA 94025         Telecopy No.: +1 650 815 7400         Attention:  Peter T. Healy, Esq.                  To the Guarantor:         Healthcare Trust of America, Inc.         16435 North Scottsdale Road, Suite 320         Scottsdale, Arizona 85254         Telecopier No.:  (480) 991-0755         Attention:  Mr. Scott D. Peters, Chief Executive Officer         cc:      Mr. Robert A. Milligan, Chief Financial Officer         With a copy to:          McDermott Will & Emery LLP         275 Middlefield Road Suite 100         Menlo Park, CA 94025         Telecopy No.: +1 650 815 7400         Attention:  Peter T. Healy, Esq.                  Any notice, direction, request or demand hereunder to or upon the Trustee shall be   deemed to have been sufficiently given or made, for all purposes, if given or served by being  deposited, postage prepaid, by registered or certified mail in a post office letter box, or sent by  overnight courier, or sent by telecopier transmission addressed as follows:        U.S. Bank National Association        Global Corporate Trust Services        101 North First Avenue, Suite 1600         Mailstop LM-AZ-16P        Phoenix, Arizona 85003        Telecopier No.:  (602) 257-5433         Attention: Mary Ambriz-Reyes, Healthcare Trust of America 2.000% Senior Notes due         2031   60      DM_US 172750087-7.111690.0021 





 






           The Trustee, by notice to the Issuer, may designate additional or different addresses for   subsequent notices or communications.         Any notice or communication mailed to a Noteholder shall be mailed by first class mail,   postage prepaid, at such Noteholder’s address as it appears on the Note Register and shall be   sufficiently given to such Noteholder if so mailed within the time prescribed.         Failure to mail a notice or communication to a Noteholder or any defect in it shall not   affect its sufficiency with respect to other Noteholders.  If a notice or communication is mailed   in the manner provided above, it is duly given, whether or not the addressee receives it.         Section 16.04. Governing Law.  This Indenture shall be governed by, and construed in   accordance with, the laws of the State of New York without regard to conflict of law principles   that would result in the application of any laws other than the laws of the State of New York.         Section 16.05. Evidence of Compliance with Conditions Precedent, Certificates to   Trustee.  Upon any application or demand by the Issuer or Guarantor to the Trustee to take any  action under any of the provisions of this Indenture, the Issuer or Guarantor 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, if requested by the  Trustee, an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions  precedent have been complied with.        Each certificate or opinion provided for in this Indenture and delivered to the Trustee  with respect to compliance with a condition or covenant provided for in this Indenture shall  include:  (1) a statement that the person making such certificate or opinion has read such  covenant or condition; (2) a brief statement as to the nature and scope of the examination or  investigation upon which the statement or opinion contained in such certificate or opinion 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 16.06. Legal Holidays.  In any case in which the Stated Maturity of interest on or  principal of the Notes or the Redemption Date of any Note will not be a Business Day, then  payment of such interest on or principal of the Notes need not be made on such date, but may be  made on the next succeeding Business Day with the same force and effect as if made on the  Stated Maturity or the Redemption Date, and no interest shall accrue for the period from and  after such date.        Section 16.07. Trust Indenture Act.  This Indenture is hereby made subject to, and shall  be governed by, the provisions of the Trust Indenture Act required to be part of and to govern  indentures qualified under the Trust Indenture Act; provided, that this Section 16.07 shall not   require this Indenture or the Trustee to be qualified under the Trust Indenture Act prior to the   time such qualification is in fact required under the terms of the Trust Indenture Act, nor shall it   constitute any admission or acknowledgment by any party to the Indenture that any such    61      DM_US 172750087-7.111690.0021 





 






     qualification is required prior to the time such qualification is in fact required under the terms of  the Trust Indenture Act.  If any provision hereof limits, qualifies or conflicts with another   provision hereof which is required to be included in an indenture qualified under the Trust   Indenture Act, such required provision shall control.         Section 16.08. No Security Interest Created.  Nothing in this Indenture or in the Notes,  expressed or implied, shall be construed to constitute a security interest under the Uniform  Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any   jurisdiction in which property of the Issuer or its subsidiaries is located.         Section 16.09. Benefits of Indenture.  Nothing in this Indenture or in the Notes, express or   implied, shall give to any Person, other than the parties hereto, any Paying Agent, any   authenticating agent, any Note Registrar and their successors hereunder and the Holders of Notes   any benefit or any legal or equitable right, remedy or claim under this Indenture.        Section 16.10. Table of Contents, Headings, etc.  The table of contents and the titles and  headings of the Articles and Sections of this Indenture have been inserted for convenience of  reference only, are not to be considered a part hereof, and shall in no way modify or restrict any  of the terms or provisions hereof.        Section 16.11. Authenticating Agent.  The Trustee may appoint an authenticating agent  that shall be authorized to act on its behalf, and subject to its direction, in the authentication and  delivery of Notes in connection with the original issuance thereof and transfers and exchanges of  Notes hereunder, including under Sections 2.04, 2.06, 2.07, 2.08 and 3.03 hereof, as fully to all   intents and purposes as though the authenticating agent had been expressly authorized by this   Indenture and those Sections to authenticate and deliver Notes.  For all purposes of this   Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed   to be authentication and delivery of such Notes “by the Trustee” and a certificate of  authentication executed on behalf of the Trustee by an authenticating agent shall be deemed to   satisfy any requirement hereunder or in the Notes for the Trustee’s certificate of authentication.    Such authenticating agent shall at all times be a Person eligible to serve as trustee hereunder   pursuant to Section 7.09 hereof.         Any corporation into which any authenticating agent may be merged or exchanged or   with which it may be consolidated, or any corporation resulting from any merger, consolidation   or exchange to which any authenticating agent shall be a party, or any corporation succeeding to   the corporate trust business of any authenticating agent, shall be the successor of the   authenticating agent hereunder, if such successor corporation is otherwise eligible under this   Section 16.11, without the execution or filing of any paper or any further act on the part of the   parties hereto or the authenticating agent or such successor corporation.         Any authenticating agent may at any time resign by giving written notice of resignation   to the Trustee and to the Issuer.  The Trustee may at any time terminate the agency of any   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 any authenticating agent shall cease to be eligible under this Section 16.11, the Trustee   shall either promptly appoint a successor authenticating agent or itself assume the duties and   obligations of the former authenticating agent under this Indenture and, upon such appointment    62      DM_US 172750087-7.111690.0021 





 






     of a successor authenticating agent, if made, shall give written notice of such appointment of a  successor authenticating agent to the Issuer and shall mail notice of such appointment of a  successor authenticating agent to all Holders of Notes as the names and addresses of such  Holders appear on the Note Register.        The Issuer agrees to pay to the authenticating agent from time to time such reasonable  compensation for its services as shall be agreed upon in writing between the Issuer and the  authenticating agent.        The provisions of Sections 7.02, 7.03, 7.04 and 8.03 hereof and this Section 16.11 shall   be applicable to any authenticating agent.        Section 16.12. Execution in Counterparts.  This Indenture may be executed in any   number of counterparts, each of which shall be an original, but such counterparts shall together   constitute but one and the same instrument.  Delivery of an executed counterpart of a signature   page of this Indenture by facsimile or other electronic imaging means shall be effective as   delivery of a manually executed counterpart of this Indenture.         Section 16.13. Severability.  In case any provision in this Indenture or in the Notes shall   be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality   and enforceability of the remaining provisions shall not in any way be affected or impaired   thereby.         U.S. Bank National Association hereby accepts the trusts in this Indenture declared and   provided, upon the terms and conditions herein above set forth.                          [Remainder of Page Intentionally Left Blank]    63      DM_US 172750087-7.111690.0021 





 






        IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed.                                               HEALTHCARE TRUST OF AMERICA                                              HOLDINGS, LP                                               By: Healthcare Trust of America, Inc.,                                                   its general partner                                                By:                                                  Name: Robert A. Milligan                                                  Title: Chief Financial Officer, Secretary and                                                          Treasurer                                                HEALTHCARE TRUST OF AMERICA, INC.,                                                  as Guarantor                                                By:                                                  Name: Robert A. Milligan                                                  Title: Chief Financial Officer, Secretary and                                                          Treasurer                                                U.S. BANK NATIONAL ASSOCIATION,                                                  as Tmstee                                               By:                                                  Name:                                                  Title:                                   [SIGNATURE PAGE TO INDENTURE]





 












 






                                      EXHIBIT A   [Include only for Global Notes]   THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE  INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE   BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO   ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT (1) THE TRUSTEE MAY   MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT TO   SECTION 2.06 OF THE INDENTURE, (2) THIS GLOBAL NOTE MAY BE EXCHANGED   IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a) OF THE INDENTURE,   (3) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR   CANCELLATION PURSUANT TO SECTION 2.09 OF THE INDENTURE AND (4) THIS   GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE   PRIOR WRITTEN CONSENT OF THE ISSUER.   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.                                          A-1      DM_US 172750087-7.111690.0021 





 






                 HEALTHCARE TRUST OF AMERICA HOLDINGS, LP                            2.000% Senior Notes due 2031  No. _______  CUSIP No.:    42225U AH7  ISIN:      US42225UAH77                                       $[●]       Healthcare Trust of America Holdings, LP, a Delaware limited partnership (herein called  the “Issuer,” which term includes any successor entity under the Indenture referred to on the  reverse hereof), for value received hereby promises to pay to Cede & Co., or its registered  assigns, the principal sum of [●] dollars ($[●]), or such lesser amount as is set forth in the  [Schedule of Increases or Decreases In Note][Schedule of Exchanges of Interests in the Global  Note] on the other side of this Note, on March 15, 2031 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 on March 15 and  September 15 of each year, commencing March 15, 2021, on said principal sum at said office or  agency, in like coin or currency, at the rate per annum of 2.000%, from the March 15 or  September 15, as the case may be, next preceding the date of this Note to which interest has been  paid or duly provided for, unless no interest has been paid or duly provided for on the Notes, in  which case from September 28, 2020 until payment of said principal sum has been made or duly  provided for.  The Issuer shall pay interest on any Notes in certificated form by check mailed to  the address of the Person entitled thereto as it appears in the Note Register; provided, however,  that a Holder of any Notes in certificated form in the aggregate principal amount of more than  $2.0 million may specify by written notice to the Issuer that it pay interest by wire transfer of  immediately available funds to the account specified by the Noteholder in such notice, or on any  Global Note by wire transfer of immediately available funds to the account of the Depositary or  its nominee.        The Issuer promises to pay interest on overdue principal, premium, if any, and (to the  extent that payment of such interest is enforceable under applicable law) interest at the rate of  1% per annum above the rate borne by the Notes.        Reference is made to the further provisions of this Note set forth on the reverse hereof  and the Indenture governing this Note.  Such further provisions shall for all purposes have the  same effect as though fully set forth at this place.        This Note shall not be valid or become obligatory for any purpose until the certificate of  authentication hereon shall have been signed manually or by facsimile or other electronic  imaging means by the Trustee or a duly authorized authenticating agent under the Indenture.                                         A-2    DM_US 172750087-7.111690.0021 





 






                          [FORM OF REVERSE SIDE OF NOTE]                       Healthcare Trust of America Holdings, LP                             2.000% Senior Notes due 2031         This Note is one of a duly authorized issue of Notes of the Issuer, designated as its   2.000% Senior Notes due 2031 (herein called the “Notes”), issued under and pursuant to an   Indenture dated as of September 28, 2020 (herein called the “Indenture”), among the Issuer, the   Guarantor and U.S. Bank National Association, as trustee (herein called the “Trustee”), to which   Indenture and any 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 Guarantor and the Holders of the Notes.  Defined 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 Section 6.01(e), 6.01(f)   or 6.01(g) 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 at least twenty five percent (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 Section 6.01(e), 6.01(f) or 6.01(g) of the Indenture   occurs with respect to the Issuer, 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 and the Trustee, with the consent   of the Holders of not less than a majority in aggregate principal amount of the Notes at the time   outstanding, to execute supplemental indentures adding any provisions to or changing in any   manner or eliminating any of the provisions of the Indenture or of any supplemental indenture or   modifying in any manner the rights of the Holders of the Notes, subject to exceptions set forth in   Section 9.02 of the 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, on and interest on this  Note at the place, at the respective times, at the rate and in the coin or currency herein and in the  Indenture prescribed.        Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day  months.        The Notes are issuable in fully registered form, without coupons, in denominations of  $2,000 principal amount and any multiple of $1,000.  At the office or agency of the 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                                         A-5      DM_US 172750087-7.111690.0021 





 






     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 Sections 3.01, 3.02 and 3.03 of the Indenture.         The Notes are not subject to redemption through the operation of any sinking fund.         Except as expressly provided in Article 15 of the Indenture, no recourse for the payment   of the principal of or any premium 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 Indenture or any supplemental indenture or in any Note, or  because of the creation of any indebtedness represented thereby, shall be had against any   incorporator, stockholder, limited partner, member, manager, employee, agent, officer, director   or subsidiary, as such, past, present or future, of the Guarantor, the Issuer or any of the Issuer’s   Subsidiaries or of any successor thereto, either directly or through the Guarantor, the Issuer or   any of the Issuer’s subsidiaries or of any successor thereto, whether by virtue of any constitution,   statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being   expressly understood that all such liability is hereby expressly waived and released as a condition   of, and as consideration for, the execution of the Indenture and the issue of this Note.                                                   A-6      DM_US 172750087-7.111690.0021 





 






                                  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).                                          A-7      DM_US 172750087-7.111690.0021 





 






          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:                                 Amount of                  Amount of      increase in  Principal Amount                  decrease in     Principal   at maturity of this                   Principal     Amount at       Global Note      Signature of                  Amount at      maturity of    following such    authorized     Date of    maturity of this this Global      decrease      officer of Trustee    Exchange     Global Note        Note        (or increase)    or Custodian      *     This schedule should be included only if the Note is issued in global form.                                                       A-8    DM_US 172750087-7.111690.0021 





 






                                         EXHIBIT B                              FORM OF GUARANTEE   The Guarantor listed below (hereinafter referred to as the “Guarantor,” which term includes any   successors or assigns under the Indenture, dated the date hereof, among the Guarantor, the Issuer   (as defined below) and U.S. Bank National Association, as trustee (the “Indenture”)), has   irrevocably and unconditionally guaranteed on a senior basis the Guarantee Obligations (as   defined in Section 15.01 of the Indenture), which include (i) the due and punctual payment of the   principal of, premium, if any, and interest and Additional Interest, if any, on the 2.000% Senior   Notes due 2031 (the “Notes”) of Healthcare Trust of America Holdings, LP, a Delaware limited  partnership (the “Issuer”), whether at maturity, by acceleration, call for redemption or otherwise,  the due and punctual payment of interest on the overdue principal and premium, if any, and (to  the extent permitted by law) interest on any interest on the Notes, and the due and punctual  performance of all other obligations of the Issuer, to the Holders of the Notes or the Trustee all in  accordance with the terms set forth in Article 15 of the Indenture, and (ii) in case of any   extension of time of payment or renewal of any Notes or any such other obligations, that the   same shall be promptly paid in full when due or performed in accordance with the terms of the  extension or renewal, whether at maturity, by acceleration, call for redemption or otherwise.  The obligations of the Guarantor to the Holders of the Notes and to the Trustee pursuant to this  Guarantee and the Indenture are expressly set forth in Article 15 of the Indenture and reference is   hereby made to such Indenture for the precise terms of this Guarantee.   No past, present or future director, officer, employee, incorporator or stockholder (direct or  indirect) of the Guarantor (or any such successor entity), as such, shall have any liability for any  obligations of the Guarantor under this Guarantee or the Indenture or for any claim based on, in  respect of, or by reason of, such obligations or their creation.  The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a  court in the event of merger or bankruptcy of the Issuer, any right to require a proceeding first  against the Issuer, the benefit of discussion, protest or notice with respect to the Notes and all  demands whatsoever.  This is a continuing Guarantee and shall remain in full force and effect and shall be binding upon  the Guarantor and its successors and assigns until full and final payment of all of the Issuer’s  obligations under the Notes and Indenture or until legally discharged in accordance with the  Indenture and shall inure to the benefit of the successors and assigns of the Trustee and the  Holders of the Notes, and, in the event of any transfer or assignment of rights by any Holder of   the Notes or the Trustee, the rights and privileges herein conferred upon that party shall   automatically extend to and be vested in such transferee or assignee, all subject to the terms and   conditions hereof.  This is a Guarantee of payment and performance and not of collectability.   This Guarantee shall not be valid or obligatory for any purpose until the certificate of   authentication on the Note upon which this Guarantee is noted shall have been signed, in the   name and on behalf of the Trustee under the Indenture, manually or by facsimile or other   electronic imaging means by one of the authorized officers of the Trustee under the Indenture.                                          B-1   DM_US 172750087-7.111690.0021 





 






     The obligations of the Guarantor under this Guarantee shall be limited to the extent necessary to  insure that it does not constitute a fraudulent conveyance under applicable law.  THE TERMS OF ARTICLE 15 OF THE INDENTURE ARE INCORPORATED HEREIN BY  REFERENCE.  Capitalized terms used herein have the same meanings given in the Indenture unless otherwise  indicated.                                         B-2  DM_US 172750087-7.111690.0021 





 






           IN WITNESS WHEREOF, the Guarantor has caused this instrument to be duly executed.  Dated:  _______, 2020                                      HEALTHCARE TRUST OF AMERICA, INC.                                                                            By:                                            Name:   Robert A. Milligan                                         Title:     Chief Financial Officer, Secretary and                                                       Treasurer                                           B-3  DM_US 172750087-7.111690.0021