Exhibit
4.5


 


 


JERNIGAN CAPITAL OPERATING COMPANY, LLC


 


INDENTURE


 


Dated as of                     ,
20


 





 



  


Trustee


 





 






 




TABLE OF CONTENTS


 


	 	 	PAGE
	 	 	 
	ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE	1
	Section 1.1	Definitions.	1
	Section 1.2	Other Definitions.	3
	Section 1.3	Incorporation by Reference of Trust Indenture Act.	4
	Section 1.4	Rules of Construction.	4
	ARTICLE II THE SECURITIES	5
	Section 2.1	Issuable in Series.	5
	Section 2.2	Establishment of Terms of Series of Securities.	5
	Section 2.3	Execution and Authentication.	7
	Section 2.4	Registrar and Paying Agent.	7
	Section 2.5	Paying Agent to Hold Money in Trust.	8
	Section 2.6	Securityholder Lists.	8
	Section 2.7	Transfer and Exchange.	8
	Section 2.8	Mutilated, Destroyed, Lost and Stolen Securities.	9
	Section 2.9	Outstanding Securities.	9
	Section 2.10	Treasury Securities.	10
	Section 2.11	Temporary Securities.	10
	Section 2.12	Cancellation.	10
	Section 2.13	Defaulted Interest.	10
	Section 2.14	Global Securities.	10
	Section 2.15	CUSIP Numbers.	11
	ARTICLE III REDEMPTION	11
	Section 3.1	Notice to Trustee.	11
	Section 3.2	Selection of Securities to be Redeemed.	12
	Section 3.3	Notice of Redemption.	12
	Section 3.4	Effect of Notice of Redemption.	13
	Section 3.5	Deposit of Redemption Price.	13
	Section 3.6	Securities Redeemed in Part.	13
	ARTICLE IV COVENANTS	13
	Section 4.1	Payment of Principal and Interest.	13
	Section 4.2	SEC Reports.	13



 






     


     


    

 


	Section 4.3	Compliance Certificate.	14
	Section 4.4	Stay, Extension and Usury Laws.	14
	ARTICLE V SUCCESSORS	14
	Section 5.1	When Operating Company May Merge, Etc.	14
	Section 5.2	Successor Corporation Substituted.	15
	ARTICLE VI DEFAULTS AND REMEDIES	15
	Section 6.1	Events of Default.	15
	Section 6.2	Acceleration of Maturity; Rescission and Annulment.	16
	Section 6.3	Collection of Indebtedness and Suits for Enforcement by Trustee.	17
	Section 6.4	Trustee May File Proofs of Claim.	17
	Section 6.5	Trustee May Enforce Claims Without Possession of Securities.	18
	Section 6.6	Application of Money Collected.	18
	Section 6.7	Limitation on Suits.	18
	Section 6.8	Unconditional Right of Holders to Receive Principal and Interest.	19
	Section 6.9	Restoration of Rights and Remedies.	19
	Section 6.10	Rights and Remedies Cumulative.	19
	Section 6.11	Delay or Omission Not Waiver.	19
	Section 6.12	Control by Holders.	19
	Section 6.13	Waiver of Past Defaults.	20
	Section 6.14	Undertaking for Costs.	20
	ARTICLE VII TRUSTEE	20
	Section 7.1	Duties of Trustee.	20
	Section 7.2	Rights of Trustee.	21
	Section 7.3	Individual Rights of Trustee.	22
	Section 7.4	Trustee’s Disclaimer.	22
	Section 7.5	Notice of Defaults.	22
	Section 7.6	Reports by Trustee to Holders.	22
	Section 7.7	Compensation and Indemnity.	22
	Section 7.8	Replacement of Trustee.	23
	Section 7.9	Successor Trustee by Merger, Etc.	24
	Section 7.10	Eligibility; Disqualification.	24
	Section 7.11	Preferential Collection of Claims Against Operating Company.	24
	ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE	24
	Section 8.1	Satisfaction and Discharge of Indenture.	24
	Section 8.2	Application of Trust Funds; Indemnification.	25
	Section 8.3	Legal Defeasance of Securities of any Series.	26
	Section 8.4	Covenant Defeasance.	27
	Section 8.5	Repayment to Operating Company.	28
	Section 8.6	Reinstatement.	28
	ARTICLE IX AMENDMENTS AND WAIVERS	28
	Section 9.1	Without Consent of Holders.	28
	Section 9.2	With Consent of Holders.	29
	Section 9.3	Limitations.	29
	Section 9.4	Compliance with Trust Indenture Act.	30
	Section 9.5	Revocation and Effect of Consents.	30
	Section 9.6	Notation on or Exchange of Securities.	30
	Section 9.7	Trustee Protected.	30
	ARTICLE X MISCELLANEOUS	31
	Section 10.1	Trust Indenture Act Controls.	31
	Section 10.2	Notices.	31
	Section 10.3	Communication by Holders with Other Holders.	31
	Section 10.4	Certificate and Opinion as to Conditions Precedent.	32
	Section 10.5	Statements Required in Certificate or Opinion.	32



 



     


     


    

 


	Section 10.6	Rules by Trustee and Agents.	32
	Section 10.7	Legal Holidays.	32
	Section 10.8	No Recourse Against Others.	32
	Section 10.9	Counterparts.	32
	Section 10.10	Governing Law; Waiver of Jury Trial.	33
	Section 10.11	No Adverse Interpretation of Other Agreements.	33
	Section 10.12	Successors.	33
	Section 10.13	Severability.	33
	Section 10.14	Table of Contents, Headings, Etc.	33
	Section 10.15	Securities in a Foreign Currency.	33
	Section 10.16	Judgment Currency.	34
	ARTICLE XI SINKING FUNDS	34
	Section 11.1	Applicability of Article.	34
	Section 11.2	Satisfaction of Sinking Fund Payments with Securities.	34
	Section 11.3	Redemption of Securities for Sinking Fund.	35
	ARTICLE XII GUARANTEE	35
	Section 12.1	Unconditional Guarantee.	35
	Section 12.2	Execution and Delivery of Notation of Guarantee.	36
	Section 12.3	Limitation on Guarantors’ Liability.	36
	Section 12.4	Release of Guarantors from Guarantee.	36


 


EXHIBITS


 


Exhibit A       Form
of Notation of Guarantee


 




     


     


    

 


JERNIGAN CAPITAL OPERATING COMPANY, LLC


Reconciliation and tie between Trust Indenture
Act of 1939 and


Indenture, dated as of                     ,
20


 


	Section 310	 	(a)(1)	 	 	 	7.10	 	 
	 	 	(a)(2)	 	 	 	7.10	 	 
	 	 	(a)(3)	 	 	 	Not Applicable	 	 
	 	 	(a)(4)	 	 	 	Not Applicable	 	 
	 	 	(a)(5)	 	 	 	7.10	 	 
	 	 	(b)	 	 	 	7.10	 	 
	Section 311	 	(a)	 	 	 	7.11	 	 
	 	 	(b)	 	 	 	7.11	 	 
	 	 	(c)	 	 	 	Not Applicable	 	 
	Section 312	 	(a)	 	 	 	2.6	 	 
	 	 	(b)	 	 	 	10.3	 	 
	 	 	(c)	 	 	 	10.3	 	 
	Section 313	 	(a)	 	 	 	7.6	 	 
	 	 	(b)(1)	 	 	 	7.6	 	 
	 	 	(b)(2)	 	 	 	7.6	 	 
	 	 	(c)(1)	 	 	 	7.6	 	 
	 	 	(d)	 	 	 	7.6	 	 
	Section 314	 	(a)	 	 	 	4.2, 10.5	 	 
	 	 	(b)	 	 	 	Not Applicable	 	 
	 	 	(c)(1)	 	 	 	10.4	 	 
	 	 	(c)(2)	 	 	 	10.4	 	 
	 	 	(c)(3)	 	 	 	Not Applicable	 	 
	 	 	(d)	 	 	 	Not Applicable	 	 
	 	 	(e)	 	 	 	10.5	 	 
	 	 	(f)	 	 	 	Not Applicable	 	 
	Section 315	 	(a)	 	 	 	7.1	 	 
	 	 	(b)	 	 	 	7.5	 	 
	 	 	(c)	 	 	 	7.1	 	 
	 	 	(d)	 	 	 	7.1	 	 
	 	 	(e)	 	 	 	6.14	 	 
	Section 316	 	(a)	 	 	 	2.10	 	 
	 	 	(a)(1)(a)	 	 	 	6.12	 	 
	 	 	(a)(1)(b)	 	 	 	6.13	 	 
	 	 	(b)	 	 	 	6.8	 	 
	Section 317	 	(a)(1)	 	 	 	6.3	 	 
	 	 	(a)(2)	 	 	 	6.4	 	 
	 	 	(b)	 	 	 	2.5	 	 
	Section 318	 	(a)	 	 	 	10.1	 	 


 


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


 


Indenture dated as of                     ,
20     among Jernigan Capital Operating Company, LLC, a Delaware limited liability company (the “Operating
Company”), the Guarantors (as defined herein) party hereto and                     ,
as trustee (the “Trustee”).


 


Each party agrees as follows for the benefit
of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.


 




     


     


    

 


ARTICLE
I


DEFINITIONS AND INCORPORATION BY REFERENCE


 


Section 1.1           Definitions.


 


“Additional Amounts” means any additional
amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid by the Operating
Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.


 


“Affiliate” of any specified person
means any other person directly or indirectly controlling or controlled by or under common control with such specified person.
For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlled by”
and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting
securities or by agreement or otherwise.


 


“Agent” means any Registrar, Paying
Agent or Notice Agent.


 


“Board of Directors” means the Board
of Directors of the Managing Member or any duly authorized committee thereof.


 


“Board Resolution” means a resolution
duly adopted by the Board of Directors.


 


“Business Day” means, unless otherwise
provided by Board Resolution, Officer’s Certificate or supplemental indenture hereto for a particular Series, any day except
a Saturday, Sunday or a legal holiday in The City of New York (or in connection with any payment, the place of payment) on which
banking institutions are authorized or required by law, regulation or executive order to close.


 


“Capital Stock” means (a) in
the case of a corporation, corporate stock; (b) in the case of an association or business entity, any and all shares, interests,
participations, rights or other equivalents (however designated and whether or not voting) of corporate stock, including each class
of common stock and preferred stock of such person; and (c) in the case of a partnership or limited liability company, partnership
or membership interests (whether general or limited).


 


“Corporate Trust Office” means the
office of the Trustee at which at any particular time its corporate trust business related to this Indenture shall be principally
administered.


 


“Default” means any event which
is, or after notice or passage of time or both would be, an Event of Default.


 


“Depositary” means, with respect
to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities, the person
designated as Depositary for such Series by the Operating Company, which Depositary shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities
of any Series shall mean the Depositary with respect to the Securities of such Series.


 


“Discount Security” means any Security
that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of acceleration
of the maturity thereof pursuant to Section 6.2.


 


“Dollars” and “$” means
the currency of the United States of America.


 


“Exchange Act” means the Securities
Exchange Act of 1934, as amended.


 


“Foreign Currency” means any currency
or currency unit issued by a government other than the government of the United States of America, including the euro.


 




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“Foreign Government Obligations”
means, with respect to Securities of any Series that are denominated in a Foreign Currency, direct obligations of, or obligations
guaranteed by, the government that issued or caused to be issued such currency for the payment of which obligations its full faith
and credit is pledged and which are not callable or redeemable at the option of the issuer thereof.


 


“GAAP” means generally accepted
accounting principles in the United States of America set forth in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards
Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect as of the date of determination.


 


“Global Security” or “Global
Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2 evidencing
all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of such
Depositary or nominee.


 


“Guarantor” means (1) the Managing
Member and (2) each person that executes this Indenture as a guarantor and its respective successors and assigns, in each case
until the Guarantee of such person has been released in accordance with the provisions of this Indenture; provided, however, that
such person shall be a Guarantor only with respect to a Series of Securities for which such person has executed a Notation of Guarantee
with respect to such Series.


 


“Holder” or “Securityholder”
means a person in whose name a Security is registered.


 


“Indenture” means this Indenture
as amended or supplemented from time to time and shall include the form and terms of a particular Series of Securities established
as contemplated hereunder.


 


“interest” with respect to any Discount
Security which by its terms bears interest only after Maturity, means interest payable after Maturity.


 


“Managing Member” means Jernigan
Capital, Inc., a Maryland corporation, in its capacity as the sole managing member of the Operating Company.


 


“Maturity,” when used with respect
to any Security, means the date on which the principal of such Security becomes due and payable as therein or herein provided,
whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.


 


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


 


“Officer” means the Chief Executive
Officer, the President, the Chief Operating Officer, the Chief Financial Officer, the Treasurer or any Assistant Treasurer, the
Secretary or any Assistant Secretary, and any Vice President of the Managing Member.


 


“Officer’s Certificate” means
a certificate signed by any Officer.


 


“Operating Company Order” means
a written order signed by an Officer.


 


“Opinion of Counsel” means a written
opinion of legal counsel who is reasonably acceptable to the Trustee. The counsel may be an employee of or counsel to the Managing
Member or its Subsidiaries


 


“person” means any individual, corporation,
partnership, joint venture, association, limited liability company, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.


 




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“principal” of a Security means
the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of, the Security.


 


“Responsible Officer” means any
officer of the Trustee in its Corporate Trust Office having responsibility for administration of this Indenture and also means,
with respect to a particular corporate trust matter, any other officer to whom any corporate trust matter is referred because of
his or her knowledge of and familiarity with a particular subject.


 


“SEC” means the Securities and Exchange
Commission.


 


“Securities” means the debentures,
notes or other debt instruments of the Operating Company of any Series authenticated and delivered under this Indenture.


 


“Series” or “Series of Securities”
means each series of debentures, notes or other debt instruments of the Operating Company created pursuant to Sections 2.1 and
2.2 hereof.


 


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


 


“Subsidiary” of any specified person
means any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital
Stock 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.


 


“TIA” means the Trust Indenture
Act of 1939, as amended.


 


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


 


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


 


Section 1.2           Other
Definitions.


	 	 	 	 	 
	
        TERM
	 	DEFINED IN

SECTION	 
	“Bankruptcy Law”	 	 	6.1	 
	“Custodian”	 	 	6.1	 
	“Guarantee”	 	 	12.1	(b)
	“Event of Default”	 	 	6.1	 
	“Judgment Currency”	 	 	10.16	 
	“Legal Holiday”	 	 	10.7	 
	“mandatory sinking fund payment”	 	 	11.1	 
	“New York Banking Day”	 	 	10.16	 
	“Notice Agent”	 	 	2.4	 
	“optional sinking fund payment”	 	 	11.1	 
	“Paying Agent”	 	 	2.4	 
	“Registrar”	 	 	2.4	 
	“Required Currency”	 	 	10.16	 
	“successor person”	 	 	5.1	 


 




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Section 1.3           Incorporation
by Reference of Trust Indenture Act.


 


Whenever this Indenture refers to a provision
of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this
Indenture have the following meanings:


 


“Commission” means the SEC.


 


“indenture securities” means the
Securities.


 


“indenture security holder” means
a Securityholder.


 


“indenture to be qualified” means
this Indenture.


 


“indenture trustee” or “institutional
trustee” means the Trustee.


 


“obligor” on the indenture securities
means the Operating Company and any successor obligor upon the Securities.


 


All other terms used in this Indenture that
are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise defined
herein are used herein as so defined.


 


Section 1.4           Rules
of Construction.


 


Unless the context otherwise requires:


 


(a)          a
term has the meaning assigned to it;


 


(b)          an
accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;


 


(c)          “or”
is not exclusive;


 


(d)          words
in the singular include the plural, and in the plural include the singular; and


 


(e)          provisions
apply to successive events and transactions.


 




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ARTICLE
II

THE SECURITIES


 


Section 2.1           Issuable
in Series.


 


The aggregate principal amount of Securities
that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series.
All Securities of a Series shall be identical except as may be set forth or determined in the manner provided in a Board Resolution,
a supplemental indenture or an Officer’s Certificate detailing the adoption of the terms thereof pursuant to authority granted
under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officer’s
Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority granted under a Board Resolution
may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest
shall accrue) are to be determined. Securities may differ between Series in respect of any matters, provided that all Series of
Securities shall be equally and ratably entitled to the benefits of the Indenture.


 


Section 2.2           Establishment
of Terms of Series of Securities.


 


At or prior to the issuance of any Securities
within a Series, the following shall be established (as to the Series generally in the case of Subsection 2.2.1 and either as to
such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.23) by or pursuant
to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture hereto
or Officer’s Certificate:


 


2.2.1           the
title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking (including
the terms of any subordination provisions) of the Series;


 


2.2.2           the
price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;


 


2.2.3           any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);


 


2.2.4           the
date or dates on which the principal of the Securities of the Series is payable;


 


2.2.5           the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series
shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such
interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;


 


2.2.6           the
place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Operating
Company in respect of the Securities of such Series and this Indenture may be delivered, and the method of such payment, if by
wire transfer, mail or other means;


 


2.2.7           if
applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities
of the Series may be redeemed, in whole or in part, at the option of the Operating Company;


 


2.2.8           the
obligation, if any, of the Operating Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices at which
and the terms and conditions upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant
to such obligation;


 




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2.2.9           the
dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Operating Company
at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;


 


2.2.10         if
other than denominations of $1,000 and any integral multiple thereof, the denominations in which the Securities of the Series shall
be issuable;


 


2.2.11         the
forms of the Securities of the Series and whether the Securities will be issuable as Global Securities;


 


2.2.12         if
other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;


 


2.2.13         the
currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, and if such currency of
denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;


 


2.2.14         the
designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities
of the Series will be made;


 


2.2.15         if
payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to
such payments will be determined;


 


2.2.16         the
manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined,
if such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity
index, stock exchange index or financial index;


 


2.2.17         the
provisions, if any, relating to any security provided for the Securities of the Series or the Guarantees;


 


2.2.18         any
addition to, deletion of or change in the Events of Default which applies to any Securities of the Series and any change in the
right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant
to Section 6.2;


 


2.2.19         any
addition to, deletion of or change in the covenants set forth in Articles IV or V which applies to Securities of the Series;


 


2.2.20         any
Depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of
such Series if other than those appointed herein;


 


2.2.21         the
provisions, if any, relating to conversion or exchange of any Securities of such Series, including if applicable, the conversion
or exchange price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the
option of the Holders thereof or at the option of the Operating Company, the events requiring an adjustment of the conversion price
or exchange price and provisions affecting conversion or exchange if such Series of Securities are redeemed;


 


2.2.22         any
other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such
Series), including any terms that may be required under applicable law or regulations or advisable in connection with the marketing
of Securities of that Series; and


 




    6 


     


    

 


2.2.23         whether
the Securities of such Series are entitled to the benefits of the Guarantee of any Guarantor pursuant to this Indenture, whether
any such Guarantee shall be made on a senior or subordinated basis and, if applicable, a description of the subordination terms
of any such Guarantee.


 


All Securities of any one Series need not be
issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to the Board Resolution, supplemental indenture hereto or Officer’s Certificate referred to above.


 


Section 2.3           Execution
and Authentication.


 


An Officer shall sign the Securities on behalf
of the Operating Company by manual or facsimile signature.


 


If an Officer whose signature is on a Security
no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.


 


A Security shall not be valid until authenticated
by the manual or facsimile signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.


 


The Trustee shall at any time, and from time
to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture
hereto or Officer’s Certificate, upon receipt by the Trustee of an Operating Company Order. Each Security shall be dated
the date of its authentication.


 


The aggregate principal amount of Securities
of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set forth in the
Board Resolution, supplemental indenture hereto or Officer’s Certificate delivered pursuant to Section 2.2, except as
provided in Section 2.8.


 


Prior to the issuance of Securities of any Series,
the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution,
supplemental indenture hereto or Officer’s Certificate establishing the form of the Securities of that Series or of Securities
within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an Officer’s
Certificate complying with Section 10.4, and (c) an Opinion of Counsel complying with Section 10.4(b).


 


The Trustee shall have the right to decline
to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such
action may not be taken lawfully; or (b) if the Trustee in good faith by its board of directors or trustees, executive committee
or a trust committee of directors and/or vice presidents or a committee of Responsible Officers shall determine that such action
would expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.


 


The Trustee may appoint an authenticating agent
acceptable to the Operating Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the
Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Operating Company or an Affiliate of the Operating Company.


 


Section 2.4           Registrar
and Paying Agent.


 


The Operating Company shall maintain, with respect
to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2, an office
or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”), where Securities
of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where notices and demands
to or upon the Operating Company in respect of the Securities of such Series and this Indenture may be delivered (“Notice
Agent”). The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange.
The Operating Company will give prompt written notice to the Trustee of the name and address, and any change in the name or address,
of each Registrar, Paying Agent or Notice Agent. If at any time the Operating Company shall fail to maintain any such required
Registrar, Paying Agent or Notice Agent or shall fail to furnish the Trustee with the name and address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Operating Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.


 




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The Operating Company may also from time to
time designate one or more co-registrars, additional paying agents or additional notice agents and may from time to time rescind
such designations; provided, however, that no such designation or rescission shall in any manner relieve the Operating Company
of its obligations to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2
for Securities of any Series for such purposes. The Operating Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional
notice agent. The term “Registrar” includes any co-registrar; the term “Paying Agent” includes any additional
paying agent; and the term “Notice Agent” includes any additional notice agent. The Operating Company or any of its
Affiliates may serve as Registrar or Paying Agent.


 


The Operating Company hereby appoints the Trustee
as the initial Registrar, Paying Agent and Notice Agent for each Series unless another Registrar, Paying Agent or Notice Agent,
as the case may be, is appointed prior to the time Securities of that Series are first issued.


 


Section 2.5           Paying
Agent to Hold Money in Trust.


 


The Operating Company shall require each Paying
Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of
any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the
Series of Securities, and will notify the Trustee in writing of any default by the Operating Company 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 Operating
Company 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 Operating Company or a Subsidiary of the Operating Company) shall have no further liability for
the money. If the Operating Company or a Subsidiary of the Operating Company acts as Paying Agent, it shall segregate and hold
in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent. Upon
any bankruptcy, reorganization or similar proceeding with respect to the Operating Company, the Trustee shall serve as Paying Agent
for the Securities.


 


Section 2.6           Securityholder
Lists.


 


The Trustee shall preserve in as current a form
as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series
of Securities and shall otherwise comply with TIA Section 312(a). If the Trustee is not the Registrar, the Operating Company
shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request
in writing a list, within 30 days of the receipt by the Operating Company of any such request, in such form and as of such date
as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities.


 


Section 2.7           Transfer
and Exchange.


 


Where Securities of a Series are presented to
the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities
of the same Series, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are
met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrar’s or
a co-registrar’s request. No service charge shall be made for any registration of transfer or exchange (except as otherwise
expressly permitted herein), but the Operating Company may require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Section 2.11, 3.6 or 9.6).


 


Neither the Operating Company nor the Registrar
shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning at
the opening of business 15 days immediately preceding the mailing of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange
Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities
selected, called or being called for redemption in part.


 




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Section 2.8           Mutilated,
Destroyed, Lost and Stolen Securities.


 


If any mutilated Security is surrendered to
the Trustee, the Operating Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.


 


If there shall be delivered to the Operating
Company and the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) such
security or indemnity bond as may be required by each of them to hold itself and any of its agents harmless, then, in the absence
of notice to the Operating Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Operating
Company shall execute and upon its request the Trustee shall authenticate and make available for delivery, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same Series and of like tenor and principal amount and bearing a number
not contemporaneously outstanding.


 


In case any such mutilated, destroyed, lost
or stolen Security has become or is about to become due and payable, the Operating Company in its discretion may, instead of issuing
a new Security, pay such Security.


 


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


 


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


 


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


 


Section 2.9           Outstanding
Securities.


 


The Securities outstanding at any time are all
the Securities authenticated by the Trustee except for those canceled by it, those delivered to it for cancellation, those reductions
in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this
Section as not outstanding.


 


If a Security is replaced pursuant to Section 2.8,
it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held by a bona fide
purchaser.


 


If the Paying Agent (other than the Operating
Company, a Subsidiary of the Operating Company or an Affiliate of the Operating Company) holds on the Maturity of Securities of
a Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series
shall cease to be outstanding and interest on them shall cease to accrue.


 


The Operating Company may purchase or otherwise
acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A Security does not cease to be
outstanding because the Operating Company or an Affiliate of the Operating Company holds the Security (but see Section 2.10
below).


 


In determining whether the Holders of the requisite
principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent or waiver
hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount
of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.


 




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Section 2.10         Treasury
Securities.


 


In determining whether the Holders of the required
principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or
waiver, Securities of a Series owned by the Operating Company or any Affiliate of the Operating Company shall be disregarded, except
that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization,
direction, notice, consent or waiver, only Securities of a Series that a Responsible Officer of the Trustee knows are so owned
shall be so disregarded.


 


Section 2.11         Temporary
Securities.


 


Until definitive Securities are ready for delivery,
the Operating Company may prepare and the Trustee shall authenticate temporary Securities upon an Operating Company Order. Temporary
Securities shall be substantially in the form of definitive Securities but may have variations that the Operating Company considers
appropriate for temporary Securities. Without unreasonable delay, the Operating Company shall prepare, and the Trustee upon receipt
of an Operating Company Order shall authenticate, definitive Securities of the same Series and date of maturity in exchange for
temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive
Securities.


 


Section 2.12         Cancellation.


 


The Operating Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange,
payment, replacement or cancellation and shall destroy such canceled Securities (subject to the record retention requirement of
the Exchange Act and the Trustee) and deliver a certificate of such cancellation to the Operating Company upon written request
of the Operating Company. The Operating Company may not issue new Securities to replace Securities that it has paid or delivered
to the Trustee for cancellation.


 


Section 2.13         Defaulted
Interest.


 


If the Operating Company defaults in a payment
of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The
Operating Company shall fix the special record date and payment date. At least ten days before the special record date, the Operating
Company shall mail to the Trustee and to each Securityholder of the Series a notice that states the special record date, the payment
date and the amount of interest to be paid. The Operating Company may pay defaulted interest in any other lawful manner.


 


Section 2.14         Global
Securities.


 


2.14.1     Terms
of Securities. A Board Resolution, a supplemental indenture hereto or an Officer’s Certificate shall establish whether
the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary
for such Global Security or Securities.


 


2.14.2     Transfer
and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition
thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the
names of Holders other than the Depositary for such Security or its nominee only if (a) such Depositary notifies the Operating
Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases
to be a clearing agency registered under the Exchange Act, and, in either case, the Operating Company fails to appoint a successor
Depositary registered as a clearing agency under the Exchange Act within 90 days of such event or (b) the Operating Company
executes and delivers to the Trustee an Officer’s Certificate to the effect that such Global Security shall be so exchangeable.
Any Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in
such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the Global
Security with like tenor and terms.


 




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Except as provided in this Section 2.14.2,
a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee
of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary
or any such nominee to a successor Depositary or a nominee of such a successor Depositary.


 


2.14.3      Legend.
Any Global Security issued hereunder shall bear a legend in substantially the following form:


 


“This Security is a Global
Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depositary or a nominee
of the Depositary. This Security is exchangeable for Securities registered in the name of a person other than the Depositary or
its nominee only in the limited circumstances described in the Indenture, and 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 another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary.”


 


2.14.4      Acts
of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the
Indenture.


 


2.14.5      Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment
of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof.


 


2.14.6      Consents,
Declaration and Directions. The Operating Company, the Trustee and any Agent shall treat a person as the Holder of such principal
amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a written statement of
the Depositary or by the applicable procedures of the Depositary with respect to such Global Security, for purposes of obtaining
any consents, declarations, waivers or directions required to be given by the Holders pursuant to this Indenture.


 


Section 2.15         CUSIP
Numbers.


 


The Operating Company in issuing the Securities
may use “CUSIP” numbers (if then generally in use) and, if so, the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance
may be placed only on the other elements of identification printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such numbers.


 


ARTICLE
III

REDEMPTION


 


Section 3.1           Notice
to Trustee.


 


The Operating Company may, with respect to any
Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series
of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for in such Securities.
If a Series of Securities is redeemable and the Operating Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing
of the redemption date and the principal amount of Series of Securities to be redeemed. The Operating Company shall give the notice
at least 15 days before the redemption date (or such shorter period as may be acceptable to the Trustee).


 




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Section 3.2           Selection
of Securities to be Redeemed.


 


Unless otherwise indicated for a particular
Series by a Board Resolution, supplemental indenture hereto or Officer’s Certificate, if less than all the Securities of
a Series are to be redeemed, the Trustee shall select the Securities of the Series to be redeemed in any manner that the Trustee
deems fair and appropriate, including by lot or other method, unless otherwise required by law or applicable stock exchange requirements,
subject, in the case of Global Securities, to the applicable rules and procedures of the Depositary. The Trustee shall make the
selection from Securities of the Series outstanding not previously called for redemption. The Trustee may select for redemption
portions of the principal of Securities of the Series that have denominations larger than $1,000. Securities of the Series and
portions of them it selects shall be in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series
issuable in other denominations pursuant to Section 2.2.10, the minimum principal denomination for each Series and the authorized
integral multiples thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply
to portions of Securities of that Series called for redemption.


 


Section 3.3           Notice
of Redemption.


 


Unless otherwise indicated for a particular
Series by Board Resolution, a supplemental indenture hereto or an Officer’s Certificate, at least 15 days but not more than
60 days before a redemption date, the Operating Company shall mail a notice of redemption by first-class mail to each Holder whose
Securities are to be redeemed.


 


The notice shall identify the Securities of
the Series to be redeemed and shall state:


 


(a)          the
redemption date;


 


(b)          the
redemption price;


 


(c)          the
name and address of the Paying Agent;


 


(d)          if
any Securities are being redeemed in part, the portion of the principal amount of such Securities to be redeemed and that, after
the redemption date and upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed
portion of the original Security shall be issued in the name of the Holder thereof upon cancellation of the original Security;


 


(e)          that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;


 


(f)          that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date;


 


(g)          the
CUSIP number, if any; and


 


(h)          any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.


 


At the Operating Company’s request, the
Trustee shall give the notice of redemption in the Operating Company’s name and at its expense, provided, however, that the
Operating Company has delivered to the Trustee, at least five days (or such shorter period as may be acceptable to the Trustee)
prior to the notice date, an Officer’s Certificate requesting that the Trustee give such notice and setting forth the information
to be stated in such notice.


 




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Section 3.4           Effect
of Notice of Redemption.


 


Once notice of redemption is mailed as provided
in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption
price. Notice of redemption may, at the Operating Company’s option and discretion, be subject to one or more conditions precedent.
Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest to but excluding
the redemption date.


 


Section 3.5           Deposit
of Redemption Price.


 


On or before 11:00 a.m., New York City time
(or such later time as has been agreed to by the Paying Agent), on the redemption date, the Operating Company shall deposit with
the Paying Agent money sufficient to pay the redemption price of and accrued and unpaid interest, if any, on all Securities to
be redeemed on that date. The Paying Agent shall promptly return to the Operating Company any money deposited with the Paying Agent
in excess of the amounts necessary to pay the redemption price of and accrued and unpaid interest, if any, on all Securities to
be redeemed or purchased.


 


If the Operating Company complies with the preceding
paragraph, then, unless the Operating Company defaults in the payment of such redemption price plus accrued and unpaid interest,
if any, interest on the Securities to be redeemed will cease to accrue on and after the applicable redemption date, whether or
not such Securities are presented for payment.


 


Section 3.6           Securities
Redeemed in Part.


 


Upon surrender of a Security that is redeemed
in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal in principal
amount to the unredeemed portion of the Security surrendered.


 


ARTICLE
IV

COVENANTS


 


Section 4.1           Payment
of Principal and Interest.


 


The Operating Company covenants and agrees for
the benefit of the Holders of each Series of Securities that it will duly and punctually pay the principal of and interest, if
any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. On or before 11:00 a.m.,
New York City time, on the applicable payment date, the Operating Company shall deposit with the Paying Agent money sufficient
to pay the principal of and interest, if any, on the Securities of each Series in accordance with the terms of such Securities
and this Indenture.


 


Section 4.2           SEC
Reports.


 


Whether or not the Operating Company is subject
to Section 13 or 15(d) of the Exchange Act, during any time that any Securities remain outstanding, the Operating Company
will, to the extent permitted under the Exchange Act, file with the SEC the annual reports, quarterly reports and other documents
which the Operating Company would have been required to file with the SEC pursuant to such Section 13 or 15(d) if the Operating
Company were so subject (the “Financial Information”), such documents to be filed with the SEC on or prior to
the respective dates (the “Required Filing Dates”) by which the Operating Company would have been required so
to file such documents if the Operating Company were so subject; provided, however, that notwithstanding the foregoing, during
any period in which the Operating Company is not subject to the reporting requirements of Sections 13 or 15(d) of the Exchange
Act, the Managing Member may elect to satisfy the Operating Company’s obligations under this Section 4.2 by filing with the
SEC the Financial Information required to be filed by the Managing Member under Sections 13 or 15(d) of the Exchange Act. The Operating
Company also will in any event (unless available on the SEC’s Electronic Data Gathering, Analysis and Retrieval System (or
successor system)) within 15 days of each Required Filing Date (i) transmit by mail to all Holders, without cost to such Holders,
copies of the Financial Information filed with the SEC by the Operating Company or the Managing Member, as applicable; and (ii) file
with the Trustee copies of such Financial Information. If the filing of the Financial Information by the Operating Company or the
Managing Member, as applicable, with the SEC is not permitted under the Exchange Act, the Operating Company will promptly upon
written request and payment of the reasonable cost of duplication and delivery, supply copies of the Financial Information to any
prospective Holder.


 




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Delivery of any such reports, information and
documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Operating Company’s
compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
The Trustee shall have no liability or responsibility for the filing, content or timeliness of any report delivered hereunder (aside
from the report required under Section 7.6 hereunder).


 


Section 4.3           Compliance
Certificate.


 


The Operating Company shall, so long as any
Securities are outstanding, deliver to the Trustee, within 120 days after the end of each fiscal year of the Operating Company,
an Officer’s Certificate stating that a review of the activities of the Operating Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Operating
Company and any Guarantor has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating,
as to such Officer signing such certificate, that to the best of such Officer’s knowledge the Operating Company and any Guarantor
has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred,
describing all such Defaults or Events of Default of which such Officer may have knowledge).


 


The Operating Company will, so long as any of
the Securities are outstanding, deliver to the Trustee, promptly upon becoming aware of any Default or Event of Default, an Officer’s
Certificate specifying such Default or Event of Default and what action the Operating Company is taking or proposes to take with
respect thereto.


 


Section 4.4           Stay,
Extension and Usury Laws.


 


The Operating Company covenants (to the extent
that it may lawfully do so) that it will 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 wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture or the Securities and the Operating Company (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.


 


ARTICLE
V

SUCCESSORS


 


Section 5.1           When
Operating Company May Merge, Etc.


 


The Operating Company shall not consolidate
with or merge with or into, or convey, transfer or lease all or substantially all of it and its Subsidiaries’ properties
and assets, taken as a whole, to, any person (a “successor person”) unless:


 


(a)          the
Operating Company is the surviving entity or the successor person (if other than the Operating Company) is a corporation, limited
liability company, partnership (including a limited partnership), trust or other entity organized and validly existing under the
laws of any U.S. domestic jurisdiction and expressly assumes the Operating Company’s obligations on the Securities and under
this Indenture;


 




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(b)          immediately
after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing; and


 


(c)          if
the Operating Company is not the successor person, then each Guarantor (if any), unless it has become the successor person, shall
confirm that its Guarantee shall continue to apply to the obligations under the Securities and this Indenture to the same extent
as prior to such merger, conveyance, transfer or lease, as applicable.


 


The Operating Company shall deliver to the Trustee
prior to the consummation of the proposed transaction an Officer’s Certificate to the foregoing effect and an Opinion of
Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture.


 


Notwithstanding the above, any Subsidiary of
the Operating Company may consolidate with, merge into or transfer all or part of its properties and assets to the Operating Company
or any Guarantor. Neither an Officer’s Certificate nor an Opinion of Counsel shall be required to be delivered in connection
therewith.


 


Section 5.2           Successor
Corporation Substituted.


 


Upon any consolidation or merger, or any sale,
lease, conveyance or other disposition of all or substantially all of the assets of the Operating Company in accordance with Section 5.1,
the successor corporation formed by such consolidation or into or with which the Operating Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be substituted for, and may exercise every right and power
of, the Operating Company under this Indenture with the same effect as if such successor person has been named as the Operating
Company herein; provided, however, that the predecessor Operating Company in the case of a sale, conveyance or other disposition
(other than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.


 


ARTICLE
VI

DEFAULTS AND REMEDIES


 


Section 6.1           Events
of Default.


 


“Event of Default,” wherever used
herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board Resolution,
supplemental indenture or Officer’s Certificate, it is provided that such Series shall not have the benefit of said Event
of Default:


 


(a)          default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default
for a period of 30 days (unless the entire amount of such payment is deposited by the Operating Company with the Trustee or with
a Paying Agent prior to 11:00 a.m., New York City time, on the 30th day of such period); or


 


(b)          default
in the payment of principal of any Security of that Series at its Maturity; or


 


(c)          default
in the performance or breach of any covenant or warranty of the Operating Company in this Indenture (other than defaults pursuant
to paragraph (a) or (b) above or pursuant to a covenant or warranty that has been included in this Indenture solely for
the benefit of a Series of Securities other than that Series), which default continues uncured for a period of 90 days after there
has been given, by registered or certified mail, to the Operating Company by the Trustee or to the Operating Company and the Trustee
by the Holders of not less than a majority in aggregate principal amount of the outstanding Securities of that Series a written
notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of Default”
hereunder; or


 


(d)          the
Operating Company pursuant to or within the meaning of any Bankruptcy Law:


 


(i)          commences
a voluntary case,


 




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


 


(iii)        consents
to the appointment of a Custodian of it or for all or substantially all of its property,


 


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


 


(v)         generally
is unable to pay its debts as the same become due; or


 


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


 


(i)          is
for relief against the Operating Company in an involuntary case,


 


(ii)         appoints
a Custodian of the Operating Company or for all or substantially all of its property, or


 


(iii)        orders
the liquidation of the Operating Company, and the order or decree remains unstayed and in effect for 60 days; or


 


(f)          any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officer’s Certificate, in accordance with Section 2.2.18.


 


The term “Bankruptcy Law” means
Title 11, U.S. Code or any similar federal or state law for the relief of debtors. The term “Custodian” means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.


 


Section 6.2           Acceleration
of Maturity; Rescission and Annulment.


 


If an Event of Default with respect to Securities
of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(d)
or (e)), then in every such case the Trustee or the Holders of not less than a majority in principal amount of the outstanding
Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such
portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any,
on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Operating Company (and
to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and
unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.1(d) or (e) shall
occur, the principal amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall
ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.


 


At any time after such a declaration of acceleration
with respect to any Series has been made and before a judgment or decree for payment of the money due has been obtained by the
Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the outstanding Securities of
that Series, by written notice to the Operating Company and the Trustee, may rescind and annul such declaration and its consequences,
including any related payment default that resulted from such acceleration, if all Events of Default with respect to Securities
of that Series, other than the non-payment of the principal and interest, if any, of Securities of that Series which have become
due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13.


 


No such rescission shall affect any subsequent
Default or impair any right consequent thereon.


 




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Section 6.3           Collection
of Indebtedness and Suits for Enforcement by Trustee.


 


The Operating Company covenants that if


 


(a)          default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for
a period of 30 days, or


 


(b)          default
is made in the payment of principal of any Security at the Maturity thereof, or


 


(c)          default
is made in the deposit of any sinking fund payment when and as due by the terms of a Security,


 


then, the Operating Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal
and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and
any overdue interest at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.


 


If the Operating Company fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree and may enforce the
same against the Operating Company, any Guarantor or any other obligor upon such Securities and collect the moneys adjudged or
deemed to be payable in the manner provided by law out of the property of the Operating Company, any Guarantor or any other obligor
upon such Securities, wherever situated.


 


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


 


Section 6.4           Trustee
May File Proofs of Claim.


 


In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to the Operating Company or any other obligor upon the Securities or the property of the Operating Company or of such other obligor
or their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Operating Company
for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,


 


(a)          to
file and prove a claim for the whole amount of principal and interest owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim
for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders
allowed in such judicial proceeding, and


 


(b)          to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same,


 


and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee
any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 7.7.


 


Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.


 




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Section 6.5           Trustee
May Enforce Claims Without Possession of Securities.


 


All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production
thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which such judgment has been recovered.


 


Section 6.6           Application
of Money Collected.


 


Any money or property collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money or property on account of principal or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:


 


First: To the payment of all amounts due the
Trustee under Section 7.7; and


 


Second: To the payment of the amounts then due
and unpaid for principal of and interest on the Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for
principal and interest, respectively; and


 


Third: To the Operating Company or the Guarantors,
as applicable.


 


Section 6.7           Limitation
on Suits.


 


No Holder of any Security of any Series shall
have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless


 


(a)          such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that
Series;


 


(b)          the
Holders of at least a majority in principal amount of the outstanding Securities of that Series shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;


 


(c)          such
Holder or Holders have offered to the Trustee indemnity or security reasonably satisfactory to the Trustee against the costs, expenses
and liabilities which might be incurred by the Trustee in compliance with such request;


 


(d)          the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding;
and


 


(e)          no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the outstanding Securities of that Series;


 


it being understood, intended and expressly covenanted by the Holder
of every Security with every other Holder and the Trustee that no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other
of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders of the applicable
Series.




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Section 6.8           Unconditional
Right of Holders to Receive Principal and Interest.


 


Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Security on the Maturity of such Security, including the Stated Maturity expressed in such Security
(or, in the case of redemption, on the redemption date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.


 


Section 6.9           Restoration
of Rights and Remedies.


 


If the Trustee or any Holder has instituted
any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination
in such proceeding, the Operating Company, the Guarantors, the Trustee and the Holders shall be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.


 


Section 6.10         Rights
and Remedies Cumulative.


 


Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise,
shall not, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.


 


Section 6.11         Delay
or Omission Not Waiver.


 


No delay or omission of the Trustee or of any
Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee
or by the Holders, as the case may be.


 


Section 6.12         Control
by Holders.


 


The Holders of a majority in principal amount
of the outstanding Securities of any Series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities
of such Series, provided that


 


(a)          such
direction shall not be in conflict with any rule of law or with this Indenture,


 


(b)          the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction,


 


(c)          subject
to the provisions of Section 6.1, the Trustee shall have the right to decline to follow any such direction if the Trustee
in good faith shall, by a Responsible Officer of the Trustee, determine that the proceeding so directed would involve the Trustee
in personal liability, and


 




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(d)          prior
to taking any action as directed under this Section 6.12, the Trustee shall be entitled to indemnity reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.


 


Section 6.13         Waiver
of Past Defaults.


 


The Holders of not less than a majority in principal
amount of the outstanding Securities of any Series may on behalf of the Holders of all the Securities of such Series waive any
past Default hereunder with respect to such Series and its consequences, except a Default in the payment of the principal of or
interest on any Security of such Series (provided, however, that the Holders of a majority in principal amount of the outstanding
Securities of any Series may rescind an acceleration and its consequences, including any related payment default that resulted
from such acceleration). Upon any such waiver, such Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereon.


 


Section 6.14         Undertaking
for Costs.


 


All parties to this Indenture agree, and each
Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require,
in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered 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, against
any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant;
but the provisions of this Section shall not apply to any suit instituted by the Operating Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount
of the outstanding Securities of any Series, or to any suit instituted by any Holder for the enforcement of the payment of the
principal of or interest on any Security on or after the Maturity of such Security, including the Stated Maturity expressed in
such Security (or, in the case of redemption, on the redemption date).


 


ARTICLE
VII

TRUSTEE


 


Section 7.1           Duties
of Trustee.


 


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


 


(b)          Except
during the continuance of an Event of Default:


 


(i)          The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others.


 


(ii)         In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon Officer’s Certificates or Opinions of Counsel furnished to the Trustee and conforming
to the requirements of this Indenture; however, in the case of any such Officer’s Certificates or Opinions of Counsel which
by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officer’s
Certificates and Opinions of Counsel to determine whether or not they conform to the form requirements of this Indenture.


 


(c)          The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:


 


(i)          This
paragraph does not limit the effect of paragraph (b) of this Section.




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(ii)         The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.


 


(iii)        The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities
of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding
Securities of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series
in accordance with Section 6.12.


 


(d)          Every
provision of this Indenture that in any way relates to the Trustee is subject to paragraph (a), (b) and (c) of this Section.


 


(e)          The
Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in performing such duty or exercising such right or power.


 


(f)          The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Operating
Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.


 


(g)          No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or powers, if adequate indemnity against such risk is not assured
to the Trustee to its reasonable satisfaction.


 


(h)          The
Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections and immunities as are set forth in
paragraphs (e), (f) and (g) of this Section, each with respect to the Trustee.


 


Section 7.2           Rights
of Trustee.


 


(a)          The
Trustee may rely on and shall be protected in acting or refraining from acting upon any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate
any fact or matter stated in the document.


 


(b)          Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such Officer’s Certificate.


 


(c)          The
Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
No Depositary shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary.


 


(d)          The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within
its rights or powers, provided that the Trustee’s conduct does not constitute willful misconduct or negligence.


 


(e)          The
Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder without willful misconduct or negligence, and
in reliance thereon.


 


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


 




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(g)          The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit.


 


(h)          The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this
Indenture.


 


Section 7.3           Individual
Rights of Trustee.


 


The Trustee in its individual or any other capacity
may become the owner or pledgee of Securities and may otherwise deal with the Operating Company or an Affiliate of the Operating
Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also
subject to Sections 7.10 and 7.11.


 


Section 7.4           Trustee’s
Disclaimer.


 


The Trustee makes no representation as to the
validity or adequacy of this Indenture or the Securities, it shall not be accountable for the Operating Company’s use of
the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than its authentication.


 


Section 7.5           Notice
of Defaults.


 


If a Default or Event of Default occurs and
is continuing with respect to the Securities of any Series and if it is known to a Responsible Officer of the Trustee, the Trustee
shall mail to each Securityholder of the Securities of that Series notice of a Default or Event of Default within 90 days after
it occurs or, if later, after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in
the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may
withhold the notice if and so long as its corporate trust committee or a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Securityholders of that Series.


 


Section 7.6           Reports
by Trustee to Holders.


 


Within 60 days after each anniversary of the
date of this Indenture, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register
kept by the Registrar, a brief report dated as of such anniversary date, in accordance with, and to the extent required under,
TIA Section 313.


 


A copy of each report at the time of its mailing
to Securityholders of any Series shall be filed with the SEC and each national securities exchange on which the Securities of that
Series are listed. The Operating Company shall promptly notify the Trustee in writing when Securities of any Series are listed
on any national securities exchange.


 


Section 7.7           Compensation
and Indemnity.


 


The Operating Company shall pay to the Trustee
from time to time compensation for its services as the Operating Company and the Trustee shall from time to time agree upon in
writing. The Trustee’s compensation shall not be limited by any law on compensation of a trustee of an express trust. The
Operating Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it. Such expenses
shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.


 




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The Operating Company shall indemnify each of
the Trustee and any predecessor Trustee (including the cost of defending itself) against any cost, expense or liability, including
taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth
in the next paragraph in the performance of its duties under this Indenture as Trustee or Agent. The Trustee shall notify the Operating
Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Operating Company shall
not relieve the Operating Company of its obligations under this Section 7.7 except to the extent that the Operating Company
suffers actual prejudice as a result of such failure. The Operating Company shall defend the claim and the Trustee shall cooperate
in the defense. The Trustee may have one separate counsel and the Operating Company shall pay the reasonable fees and expenses
of such counsel. The Operating Company need not pay for any settlement made without its consent, which consent shall not be unreasonably
withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.


 


The Operating Company need not reimburse any
expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or
agent of the Trustee through willful misconduct or negligence.


 


To secure the Operating Company’s payment
obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all money or property held
or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.


 


When the Trustee incurs expenses or renders
services after an Event of Default specified in Section 6.1(d) or (e) occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under any Bankruptcy Law.


 


The provisions of this Section shall survive
the termination of this Indenture.


 


Section 7.8           Replacement
of Trustee.


 


A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment as
provided in this Section.


 


The Trustee may resign with respect to the Securities
of one or more Series by so notifying the Operating Company at least 30 days prior to the date of the proposed resignation. The
Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by
so notifying the Trustee and the Operating Company. The Operating Company may remove the Trustee with respect to Securities of
one or more Series if:


 


(a)          the
Trustee fails to comply with Section 7.10;


 


(b)          the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy
Law;


 


(c)          (c)
a Custodian or public officer takes charge of the Trustee or its property; or


 


(d)          the
Trustee becomes incapable of acting.


 


If the Trustee resigns or is removed or if a
vacancy exists in the office of Trustee for any reason, the Operating Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities
may appoint a successor Trustee to replace the successor Trustee appointed by the Operating Company.


 


If a successor Trustee with respect to the Securities
of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is removed, the retiring Trustee,
the Operating Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series may
petition any court of competent jurisdiction for the appointment of a successor Trustee.


 




    23 


     


    

 


A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the Operating Company. Immediately after that, the retiring Trustee
shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7,
the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture.
A successor Trustee shall mail a notice of its succession to each Securityholder of each such Series. Notwithstanding replacement
of the Trustee pursuant to this Section 7.8, the Operating Company’s obligations under Section 7.7 hereof shall
continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it for actions taken or omitted
to be taken in accordance with its rights, powers and duties under this Indenture prior to such replacement.


 


Section 7.9           Successor
Trustee by Merger, Etc.


 


If the Trustee consolidates with, merges or
converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor corporation
without any further act shall be the successor Trustee, subject to Section 7.10.


 


Section 7.10         Eligibility;
Disqualification.


 


This Indenture shall always have a Trustee who
satisfies the requirements of TIA Section 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and
surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply
with TIA Section 310(b).


 


Section 7.11         Preferential
Collection of Claims Against Operating Company.


 


The Trustee is subject to TIA Section 311(a),
excluding any creditor relationship listed in TIA Section 311(b). A Trustee who has resigned or been removed shall be subject
to TIA Section 311(a) to the extent indicated.


 


ARTICLE
VIII

SATISFACTION AND DISCHARGE; DEFEASANCE


 


Section 8.1           Satisfaction
and Discharge of Indenture.


 


This Indenture shall upon the direction of the
Operating Company pursuant to an Operating Company Order cease to be of further effect with respect to any Series of Securities
specified in such Operating Company Order (except as hereinafter provided in this Section 8.1), and the Trustee, at the expense
of the Operating Company, shall execute instruments acknowledging satisfaction and discharge of this Indenture as to such Series,
when


 


(a)          either


 


(i)          all
Securities of such Series theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen
and that have been replaced or paid) have been delivered to the Trustee for cancellation; or


 


(ii)         all
such Securities of such Series not theretofore delivered to the Trustee for cancellation


 


(1) have become due and payable, or


 


(2) will become due and payable at their
Stated Maturity within one year, or


 


(3) have been called for redemption or are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Operating Company, or


 


(4) are deemed paid and discharged pursuant
to Section 8.3, as applicable;


 




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and the Operating Company, in the case of (1), (2) or (3) above,
has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose an amount of money
or U.S. Government Obligations sufficient for the purpose of paying and discharging the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancellation, including the principal of, any premium and interest on, and, to the
extent that the Securities of such Series provide for the payment of Additional Amounts thereon and the amount of any such Additional
Amounts which are or will be payable with respect to such Securities is at the time of the deposit determinable by the Operating
Company (in the Operating Company’s exercise of reasonable discretion), any Additional Amounts with respect to, such Securities
to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit)
or to the Stated Maturity or redemption date, as the case may be;


 


(b)          the
Operating Company has paid or caused to be paid all other sums payable hereunder by the Operating Company; and


 


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


 


Notwithstanding the satisfaction and discharge
of this Indenture, the obligations of the Operating Company to the Trustee under Section 7.7, and, if money shall have been
deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5 shall
survive.


 


If the Operating Company exercises the satisfaction
and discharge provisions in compliance with this Indenture with respect to Securities of a particular Series that are entitled
to the benefit of the Guarantee of any Guarantor, the Guarantee will terminate with respect to that Series of Securities.


 


Section 8.2           Application
of Trust Funds; Indemnification.


 


(a)          Subject
to the provisions of Section 8.5, all money or U.S. Government Obligations deposited with the Trustee pursuant to Section 8.1,
all money and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Section 8.3
or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign Government Obligations deposited
with the Trustee pursuant to Section 8.3 or 8.4, shall be held in trust and applied by it, in accordance with the provisions
of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Operating Company
acting as its own Paying Agent) as the Trustee may determine, to the persons entitled thereto, of the principal and interest for
whose payment such money has been deposited with or received by the Trustee or to make mandatory sinking fund payments or analogous
payments as contemplated by Section 8.3 or 8.4.


 


(b)          The
Operating Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on or assessed against
U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Section 8.3 or 8.4 or the interest and
principal received in respect of such obligations other than any payable by or on behalf of Holders.


 


(c)          The
Trustee shall deliver or pay to the Operating Company from time to time upon Operating Company Order any U.S. Government Obligations
or Foreign Government Obligations or money held by it as provided in Section 8.3 or 8.4 which, in the opinion of a nationally
recognized firm of independent certified public accountants or investment bank expressed in a written certification thereof delivered
to the Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for
which such U.S. Government Obligations or Foreign Government Obligations or money were deposited or received. This provision shall
not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.


 




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Section 8.3           Legal
Defeasance of Securities of any Series.


 


Unless this Section 8.3 is otherwise specified,
pursuant to Section 2.2, to be inapplicable to Securities of any Series, the Operating Company shall be deemed to have paid
and discharged the entire indebtedness on all the outstanding Securities of any Series on the 91st day after the date of the deposit
referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities
of such Series, shall no longer be in effect and any Guarantee will terminate with respect to that Series of Securities (and the
Trustee, at the expense of the Operating Company, shall, upon receipt of an Operating Company Order, execute instruments acknowledging
the same), except as to:


 


(a)          the
rights of Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment
of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on the Maturity
of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable
to the Securities of such Series on the day on which such payments are due and payable in accordance with the terms of this Indenture
and the Securities of such Series;


 


(b)          the
provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5; and


 


(c)          the
rights, powers, trust and immunities of the Trustee hereunder and the Operating Company’s obligations in connection therewith;


 


provided that the following conditions shall have been satisfied:


 


(d)          the
Operating Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) with the
Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for and dedicated
solely to the benefit of the Holders of such Securities (i) in the case of Securities of such Series denominated in Dollars,
cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign
Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest
and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability
will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient,
in the opinion of a nationally recognized firm of independent public accountants or investment bank expressed in a written certification
thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory
sinking fund payments in respect of all the Securities of such Series on the dates such installments of interest or principal and
such sinking fund payments are due;


 


(e)          such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Operating Company is a party or by which it is bound (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 related to other indebtedness of the Operating
Company or any Subsidiary) and the granting of liens to secure such borrowings);


 


(f)          no
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of
such deposit or during the period ending on the 91st day after such date;


 


(g)          the
Operating Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel to the effect that
(i) the Operating Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since
the date of execution 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 Securities of such Series will not
recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be
subject to federal income tax on the same amount and in the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge had not occurred;


 




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(h)          the
Operating Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the
Operating Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Operating Company;
and


 


(i)          the
Operating Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that
all conditions precedent provided for relating to the defeasance contemplated by this Section have been complied with.


 


Section 8.4           Covenant
Defeasance.


 


Unless this Section 8.4 is otherwise specified
pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Operating Company may omit to comply with respect
to the Securities of any Series with any term, provision or condition set forth under Sections 4.2, 4.3 and 4.4 as well as any
additional covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officer’s
Certificate delivered pursuant to Section 2.2 (and the failure to comply with any such covenants shall not constitute a Default
or Event of Default with respect to such Series under Section 6.1) and the occurrence of any event specified in a supplemental
indenture for such Series of Securities or a Board Resolution or an Officer’s Certificate delivered pursuant to Section 2.2.18
and designated as an Event of Default shall not constitute a Default or Event of Default hereunder, with respect to the Securities
of such Series, provided that the following conditions shall have been satisfied:


 


(a)          With
reference to this Section 8.4, the Operating Company has deposited or caused to be irrevocably deposited (except as provided
in Section 8.2(c)) with the Trustee as trust funds in trust for the purpose of making the following payments specifically
pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities (i) in the case of Securities
of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities
of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations,
which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and without
reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any
payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public
accountants or investment bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge each
installment of principal of and interest, if any, on and any mandatory sinking fund payments in respect of the Securities of such
Series on the dates such installments of interest or principal and such sinking fund payments are due;


 


(b)          Such
deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument
to which the Operating Company is a party or by which it is bound (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 related to other indebtedness of the Operating
Company or any Subsidiary) and the granting of liens to secure such borrowings);


 


(c)          No
Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of
such deposit;


 


(d)          The
Operating Company shall have delivered to the Trustee an Opinion of Counsel to the effect that Holders of the Securities of such
Series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance
and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the
case if such deposit and covenant defeasance had not occurred;


 


(e)          The
Operating Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the
Operating Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Operating Company;
and


 




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(f)          The
Operating Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that
all conditions precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied
with.


 


Section 8.5           Repayment
to Operating Company.


 


Subject to applicable abandoned property law,
the Trustee and the Paying Agent shall pay to the Operating Company upon request any money held by them for the payment of principal
and interest that remains unclaimed for two years. After that, Securityholders entitled to the money must look to the Operating
Company for payment as general creditors unless an applicable abandoned property law designates another person.


 


Section 8.6           Reinstatement.


 


If the Trustee or the Paying Agent is unable
to apply any money deposited with respect to Securities of any Series in accordance with Section 8.1 by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the obligations of the Operating Company under this Indenture with respect to the Securities of such Series and
under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1
until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 8.1; provided,
however, that if the Operating Company has made any payment of principal of or interest on or any Additional Amounts with respect
to any Securities because of the reinstatement of its obligations, the Operating Company shall be subrogated to the rights of the
Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying
Agent after payment in full to the Holders.


 


ARTICLE
IX

AMENDMENTS AND WAIVERS


 


Section 9.1           Without
Consent of Holders.


 


The Operating Company, any Guarantors and the
Trustee may amend or supplement this Indenture or the Securities of one or more Series without the consent of any Securityholder:


 


(a)          to
cure any ambiguity, omission, defect or inconsistency;


 


(b)          to
comply with Article V;


 


(c)          to
provide for uncertificated Securities in addition to or in place of certificated Securities;


 


(d)          to
surrender any of the Operating Company’s rights or powers under this Indenture;


 


(e)          to
add covenants or events of default for the benefit of the holders of Securities of any Series;


 


(f)          to
comply with the applicable procedures of the applicable depositary;


 


(g)          to
make any change that does not adversely affect the rights of any Securityholder;


 


(h)          to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;


 


(i)          to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee;




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(j)          to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;


 


(k)          to
reflect the release of any Guarantor in accordance with Article XII; or


 


(l)          to
add Guarantors with respect to any or all of the Securities or to secure any or all of the Securities or the Guarantees.


 


Section 9.2           With
Consent of Holders.


 


The Operating Company, any Guarantors and the
Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in principal amount
of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained in connection
with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions to or changing
in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Securityholders of each such Series. Except as provided in Section 6.13, the Holders of at least a majority
in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained in connection
with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Operating Company with any
provision of this Indenture or the Securities with respect to such Series.


 


It shall not be necessary for the consent of
the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture or
waiver, but it shall be sufficient if such consent approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Operating Company shall mail to the Holders of Securities affected thereby, a notice briefly
describing the supplemental indenture or waiver. Any failure by the Operating Company to mail or publish such notice, or any defect
therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.


 


Section 9.3           Limitations.


 


Without the consent of each Securityholder affected,
an amendment or waiver may not:


 


(a)          reduce
the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;


 


(b)          reduce
the rate of or extend the time for payment of interest (including default interest) on any Security;


 


(c)          reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment
of any sinking fund or analogous obligation;


 


(d)          reduce
the principal amount of Discount Securities payable upon acceleration of the maturity thereof;


 


(e)          waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such
Series and a waiver of the payment default that resulted from such acceleration);


 


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


 


(g)          make
any change in Section 6.8, 6.13 or 9.3 (this sentence);


 




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(h)          waive
a redemption payment with respect to any Security, provided that such redemption is made at the Operating Company’s option;
or


 


(i)          if
the Securities of that Series are entitled to the benefit of the Guarantee, release any Guarantor of such Series other than as
provided in this Indenture or modify the Guarantee in any manner adverse to the Holders.


 


Section 9.4           Compliance
with Trust Indenture Act.


 


Every amendment to this Indenture or the Securities
of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.


 


Section 9.5           Revocation
and Effect of Consents.


 


Until an amendment is set forth in a supplemental
indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every
subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting Holder’s Security,
even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent
as to his Security or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental
indenture or the date the waiver becomes effective.


 


Any amendment or waiver once effective shall
bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described in any of clauses
(a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has
consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security.


 


The Operating Company may, but shall not be
obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action
described above or required or permitted to be taken pursuant to this Indenture. If a record date is fixed, then notwithstanding
the immediately preceding paragraph, those persons who were Holders at such record date (or their duly designated proxies), and
only those persons, shall be entitled to give such consent or to revoke any consent previously given or take any such action, whether
or not such persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120
days after such record date.


 


Section 9.6           Notation
on or Exchange of Securities.


 


The Operating Company or the Trustee may place
an appropriate notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Operating Company
in exchange for Securities of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series
that reflect the amendment or waiver.


 


Section 9.7           Trustee
Protected.


 


In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon, an Officer’s
Certificate or an Opinion of Counsel complying with Section 10.4. The Trustee shall sign all supplemental indentures upon
delivery of such an Officer’s Certificate or Opinion of Counsel, except that the Trustee need not sign any supplemental indenture
that adversely affects its rights.


 




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ARTICLE
X

MISCELLANEOUS


 


Section 10.1         Trust
Indenture Act Controls.


 


If any provision of this Indenture limits, qualifies,
or conflicts with another provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed
provision shall control.


 


Section 10.2         Notices.


 


Any notice or communication by the Operating
Company, any Guarantor or the Trustee to the other, or by a Holder to the Operating Company, any Guarantor or the Trustee, is duly
given if in writing and delivered in person or mailed by first-class mail:


 


if to the Operating Company or any Guarantor:


 


Jernigan Capital, Inc.


6410 Poplar Ave., Suite. 650


Memphis, TN 38119


Attention: John A. Good, President and Chief Financial
Officer


 


with a copy to:


 


Morrison & Foerster LLP


2000 Pennsylvania Avenue, N.W., Suite 6000


Washington, D.C. 20006


Attention:   David P. Slotkin, Esq.


 


if to the Trustee:


 





 



 





 



 


Attention:      


 


The Operating Company, any Guarantor or the Trustee by notice to
the other may designate additional or different addresses for subsequent notices or communications.


 


Any notice or communication to a Securityholder
shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to mail a notice or communication
to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of
that or any other Series.


 


If a notice or communication is mailed or published
in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives it.


 


If the Operating Company or any Guarantor mails
a notice or communication to Securityholders, it shall mail a copy to the Trustee and each Agent at the same time.


 


Notwithstanding any other provision of this
Indenture or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption)
to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given to the Depositary for
such Security (or its designee) pursuant to the customary procedures of such Depositary.


 


Section 10.3         Communication
by Holders with Other Holders.


 


Securityholders of any Series may communicate
pursuant to TIA Section 312(b) with other Securityholders of that Series or any other Series with respect to their rights
under this Indenture or the Securities of that Series or all Series. The Operating Company, the Trustee, the Registrar and anyone
else shall have the protection of TIA Section 312(c).


 




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Section 10.4         Certificate
and Opinion as to Conditions Precedent.


 


Upon any request or application by the Operating
Company to the Trustee to take any action under this Indenture, the Operating Company shall furnish to the Trustee:


 


(a)          an
Officer’s Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and


 


(b)          an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.


 


Section 10.5         Statements
Required in Certificate or Opinion.


 


Each certificate or opinion with respect to
compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA Section 314(a)(4))
shall comply with the provisions of TIA Section 314(e) and shall include:


 


(a)          a
statement that the person making such certificate or opinion has read such covenant or condition;


 


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


 


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


 


(d)          a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.


 


Section 10.6         Rules
by Trustee and Agents.


 


The Trustee may make reasonable rules for action
by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for
its functions.


 


Section 10.7         Legal
Holidays.


 


Unless otherwise provided by Board Resolution,
Officer’s Certificate or supplemental indenture hereto for a particular Series, a “Legal Holiday” is any day
that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the
next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.


 


Section 10.8         No
Recourse Against Others.


 


A director, officer, employee, stockholder or
controlling person (past or present), as such, of the Operating Company or any Guarantor shall not have any liability for any obligations
of the Operating Company under the Securities, the Guarantee or the Indenture or for any claim based on, in respect of or by reason
of such obligations or their creation. Each Securityholder by accepting a Security waives and releases all such liability. The
waiver and release are part of the consideration for the issue of the Securities.


 


Section 10.9         Counterparts.


 


This Indenture may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Indenture and of signature
pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto
and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or
PDF shall be deemed to be their original signatures for all purposes.


 




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Section 10.10         Governing
Law; Waiver of Jury Trial.


 


THIS INDENTURE AND THE SECURITIES, INCLUDING
ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF OTHER THAN SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.


 


Section 10.11         No
Adverse Interpretation of Other Agreements.


 


This Indenture may not be used to interpret
another indenture, loan or debt agreement of the Operating Company or a Subsidiary of the Operating Company. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.


 


Section 10.12         Successors.


 


All agreements of the Operating Company and
the Guarantors in this Indenture and the Securities shall bind their respective successors. All agreements of the Trustee in this
Indenture shall bind its successor.


 


Section 10.13         Severability.


 


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


 


Section 10.14         Table
of Contents, Headings, Etc.


 


The Table of Contents, Cross Reference Table,
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 10.15         Securities
in a Foreign Currency.


 


Unless otherwise specified in a Board Resolution,
a supplemental indenture hereto or an Officer’s Certificate delivered pursuant to Section 2.2 of this Indenture with
respect to a particular Series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of
a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action
at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in more than one
currency, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose of taking
such action shall be determined by converting any such other currency into a currency that is designated upon issuance of any particular
Series of Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto or an Officer’s Certificate
delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, such conversion shall
be at the spot rate for the purchase of the designated currency as published in The Financial Times in the “Currency Rates”
section (or, if The Financial Times is no longer published, or if such information is no longer available in The Financial Times,
such source as may be selected in good faith by the Operating Company) on any date of determination. The provisions of this paragraph
shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than
Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.


 




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All decisions and determinations provided for
in the preceding paragraph shall, in the absence of manifest error, to the extent permitted by law, be conclusive for all purposes
and irrevocably binding upon the Trustee and all Holders.


 


Section 10.16         Judgment
Currency.


 


The Operating Company agrees, to the fullest
extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court
it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series
(the “Required Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”),
the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in
The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered,
unless such day is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New
York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to
any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the Required Currency, except
to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required
Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause
of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short
of the full amount of the Required Currency so expressed to be payable, and (iii) shall not be affected by judgment being
obtained for any other sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any
day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close.


 


ARTICLE
XI

SINKING FUNDS


 


Section 11.1         Applicability
of Article.


 


The provisions of this Article shall be applicable
to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of such Securities pursuant to
Section 2.2, except as otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.


 


The minimum amount of any sinking fund payment
provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment”
and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking
fund payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 11.2. Each sinking fund payment shall be applied to the redemption of Securities
of any Series as provided for by the terms of the Securities of such Series.


 


Section 11.2         Satisfaction
of Sinking Fund Payments with Securities.


 


The Operating Company may, in satisfaction of
all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such
Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than
any of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such
Series to which such sinking fund payment is applicable and which have been repurchased by the Operating Company or redeemed either
at the election of the Operating Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking
fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms
of such Securities, provided that such Securities have not been previously so credited. Such Securities shall be received by the
Trustee, together with an Officer’s Certificate with respect thereto, not later than 15 days prior to the date on which the
Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the
price specified in such Securities for redemption through operation of the sinking fund and the amount of such sinking fund payment
shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this
Section 11.2, the principal amount of Securities of such Series to be redeemed in order to exhaust the aforesaid cash payment
shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Operating
Company Order that such action be taken, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the
next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt
of a Operating Company Order pay over and deliver to the Operating Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Operating Company to the Trustee of Securities of that Series purchased by the Operating Company
having an unpaid principal amount equal to the cash payment required to be released to the Operating Company.


 




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Section 11.3         Redemption
of Securities for Sinking Fund.


 


Not less than 45 days (unless otherwise indicated
in the Board Resolution, supplemental indenture hereto or Officer’s Certificate in respect of a particular Series of Securities)
prior to each sinking fund payment date for any Series of Securities, the Operating Company will deliver to the Trustee an Officer’s
Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that
Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be
satisfied by delivering and crediting of Securities of that Series pursuant to Section 11.2, and the optional amount, if any,
to be added in cash to the next ensuing mandatory sinking fund payment, and the Operating Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officer’s
Certificate or supplemental indenture in respect of a particular Series of Securities) before each such sinking fund payment date
the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2
and cause notice of the redemption thereof to be given in the name of and at the expense of the Operating Company in the manner
provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 3.4, 3.5 and 3.6.


 


ARTICLE
XII

GUARANTEE


 


Section 12.1         Unconditional
Guarantee.


 


(a)          Notwithstanding
any provision of this Article XII to the contrary, the provisions of this Article XII shall be applicable only to, and inure solely
to the benefit of, the Securities of any Series designated, pursuant to Section 2.2.23, as entitled to the benefits of the
Guarantee of each Guarantor identified in such designation and that has executed a Notation of Guarantee with respect to such Series.


 


(b)          For
value received, each Guarantor hereby jointly and severally, fully, unconditionally and absolutely guarantees (the “Guarantee”)
to the Holders and to the Trustee the due and punctual payment of the principal of and interest on each Series of Securities for
which such Guarantor has executed a Notation of Guarantee with respect to such Series and all other amounts due and payable under
this Indenture and the Securities of such Series by the Operating Company, when and as such principal and interest shall become
due and payable, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, according
to the terms of such Securities and this Indenture, subject to the limitations set forth in Section 12.3.


 


(c)          Failing
payment when due of any amount guaranteed pursuant to the Guarantee, for whatever reason, each of the Guarantors will be jointly
and severally obligated to pay the same immediately. Each of the Guarantors hereby agrees that its obligations hereunder shall
be full, unconditional and absolute, irrespective of the validity, regularity or enforceability of the Securities, the Guarantee
(including the Guarantee of any other Guarantor) or this Indenture, the absence of any action to enforce the same, any waiver or
consent by any Holder of the Securities with respect to any provisions hereof or thereof, the recovery of any judgment against
the Operating Company or any other Guarantor, or any action to enforce the same or any other circumstances which might otherwise
constitute a legal or equitable discharge or defense of any of the Guarantors. Each Guarantor hereby agrees that in the event of
a default in payment of the principal of or interest on the Securities entitled to the Guarantee of such Guarantor, whether at
the Stated Maturity or by declaration of acceleration, call for redemption or otherwise, legal proceedings may be instituted by
the Trustee on behalf of the Holders or, subject to Section 6.7, by the Holders, on the terms and conditions set forth in
this Indenture, directly against such Guarantor to enforce the Guarantee without first proceeding against the Operating Company
or any other Guarantor.


 




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(d)          Each
Guarantor hereby (i) waives diligence, presentment, demand of payment, filing of claims with a court in the event of the merger,
insolvency or bankruptcy of the Operating Company or any of the Guarantors, and all demands whatsoever and (ii) acknowledges
that any agreement, instrument or document evidencing the Guarantee may be transferred and that the benefit of its obligations
hereunder shall extend to each holder of any agreement, instrument or document evidencing the Guarantee without notice to it. Each
Guarantor further agrees that if at any time all or any part of any payment theretofore applied by any person to the Guarantee
is, or must be, rescinded or returned for any reason whatsoever, including without limitation, the insolvency, bankruptcy or reorganization
of the Operating Company or any of the Guarantors, the Guarantee shall, to the extent that such payment is or must be rescinded
or returned, be deemed to have continued in existence notwithstanding such application, and the Guarantee shall continue to be
effective or be reinstated, as the case may be, as though such application had not been made.


 


(e)          Each
Guarantor shall be subrogated to all rights of the Holders and the Trustee against the Operating Company in respect of any amounts
paid by such Guarantor pursuant to the provisions of this Indenture; provided, however, that such Guarantor shall not be entitled
to enforce or to receive any payments arising out of, or based upon, such right of subrogation until all of the Securities entitled
to the Guarantee of such Guarantor and the Guarantee shall have been paid in full or discharged.


 


Section 12.2         Execution
and Delivery of Notation of Guarantee.


 


To evidence the Guarantee of a Guarantor of
a Series of Securities, a Notation of Guarantee, executed by either manual or facsimile signature of an officer of such Guarantor,
shall be affixed on each Security entitled to the benefits of the Guarantee of such Guarantor. If any officer of any Guarantor
whose signature is on a Notation of Guarantee no longer holds that office at the time the Trustee authenticates a Security to which
such Notation of Guarantee is affixed or at any time thereafter, the Guarantee of such Security shall be valid nevertheless. The
delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Guarantee
relating to such Security set forth in the Indenture on behalf of the Guarantor.


 


Section 12.3         Limitation
on Guarantors’ Liability.


 


Each Guarantor by its acceptance hereof and
each Holder of Security entitled to the benefits of the Guarantee hereby confirms that it is the intention of all such parties
that the guarantee by such Guarantor pursuant to the Guarantee not constitute a fraudulent transfer or conveyance for purposes
of any federal or state law. To effectuate the foregoing intention, each Holder of a Security entitled to the benefits of the Guarantee
and each Guarantor hereby irrevocably agrees that the obligations of each Guarantor under the Guarantee shall be limited to the
maximum amount as will, after giving effect to all other contingent and fixed liabilities of such Guarantor and to any collections
from or payments made by or on behalf of any other Guarantor in respect of the obligations of such other Guarantor under the Guarantee,
not result in the obligations of such Guarantor under the Guarantee constituting a fraudulent conveyance or fraudulent transfer
under federal or state law.


 


Section 12.4         Release
of Guarantors from Guarantee.


 


(a)          Notwithstanding
any other provisions of this Indenture, the Guarantee of any Guarantor may be released upon the terms and subject to the conditions
set forth in Section 8.1, Section 8.3 and this Section 12.4. Provided that no Default shall have occurred and shall
be continuing under this Indenture, the Guarantee incurred by a Guarantor pursuant to this Article XII shall be unconditionally
released and discharged (i) automatically upon (A) any sale, exchange or transfer, whether by way of merger or otherwise,
to any person that is not an Affiliate of the Operating Company, of all of the Operating Company’s direct or indirect equity
interests in such Guarantor (provided such sale, exchange or transfer is not prohibited by this Indenture) or (B) the merger
of such Guarantor into the Operating Company or any other Guarantor or the liquidation and dissolution of such Guarantor (in each
case to the extent not prohibited by this Indenture) or (ii) with respect to any Series of Securities, upon the occurrence
of any other condition set forth in the Board Resolution, supplemental indenture or Officer’s Certificate establishing the
terms of such Series.


 




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(b)          Upon
receipt of a written request of the Operating Company accompanied by an Officer’s Certificate or Opinion of Counsel to the
effect that any Guarantor is entitled to release from the Guarantee in accordance with the provisions of this Indenture, the Trustee
shall deliver an appropriate instrument evidencing the release of such Guarantor from the Guarantee. Any Guarantor not so released
shall remain liable for the full amount of principal of and interest on the Securities entitled to the benefits of the Guarantee
as provided in this Indenture, subject to the limitations of Section 12.3.


 


[Signature Page Follows]


 




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


 


	 	Jernigan Capital Operating Company, LLC 
	 	 	 
	 	By:	 	

	 	 	 	Name:
	 	 	 	Title:
	 	 	 
	 	 	 	, as a Guarantor
	 	 	 
	 	By:	 	 
	 	 	 	Name:
	 	 	 	Title:
	 	 	 
	 	[Trustee]	 	 
	 	 	 
	 	By:	 	 
	 	 	 	Name:
	 	 	 	Title:


 




     


     


    

 


EXHIBIT A


 


FORM OF


 


NOTATION OF GUARANTEE


 


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


 


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


 


	 	[NAME OF GUARANTOR(S)]
	 	 	 
	 	By:	 
	 	 	Name:
	 	 	Its: